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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

FORM 8-K

 

 

 

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

 

DATE OF REPORT (Date of earliest event reported): July 5, 2024

 

 

 

Smurfit WestRock plc

(Exact name of registrant as specified in its charter)

 

 

 

Ireland
(State or other jurisdiction of
incorporation or organization)		  

333-278185

(Commission File Number)

   98-1776979
(I.R.S. Employer
Identification No.)

 

Beech Hill, Clonskeagh
Dublin 4, D04 N2R2
Ireland

N/A

(Zip Code)

(Address of principal executive offices)

(Address, including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices) 

 

 

 

+353 1 202 7000

(Registrant’s phone number, including area code)

 

 

 

Smurfit WestRock Limited

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

  

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading Symbol(s) Name of each exchange on which registered
Ordinary shares, par value $0.001 per share SW New York Stock Exchange (NYSE)

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

 

 

 

Introductory Note.

 

On July 5, 2024, pursuant to the Transaction Agreement, dated as of September 12, 2023 (the “Transaction Agreement”), among Smurfit WestRock plc (formerly Smurfit WestRock Limited and prior to that known as Cepheidway Limited, “Smurfit WestRock” or the “Company”), Smurfit Kappa Group plc (“Smurfit Kappa”), WestRock Company (“WestRock”) and Sun Merger Sub, LLC (“Merger Sub”), (i) Smurfit WestRock acquired Smurfit Kappa by means of a scheme of arrangement (the “Scheme”) under the Companies Act 2014 of Ireland (as amended) (the “Smurfit Kappa Share Exchange”), and (ii) Merger Sub merged with and into WestRock, with WestRock continuing as the surviving entity (the “Merger,” and together with the Smurfit Kappa Share Exchange, the “Combination”). Upon completion of the Combination, Smurfit Kappa and WestRock each became wholly owned subsidiaries of Smurfit WestRock. Capitalized terms used herein but not otherwise defined herein have the meaning set forth in the Transaction Agreement.

 

Item 1.01.Entry into a Material Definitive Agreement.

 

Indemnification Agreements

 

Effective July 5, 2024, Smurfit WestRock entered into deeds of indemnification (the “Deeds of Indemnification”) with the directors, the corporate secretary and the officers subject to Section 16 of the Securities Exchange Act of 1934, as amended (the “Section 16 Officers”) of the Company. The Deeds of Indemnification, which are governed under the laws of Ireland, provide indemnification to such directors, corporate secretary and Section 16 Officers to the fullest extent permitted by the laws of Ireland, and in accordance with Smurfit WestRock’s Amended Constitution (as defined below), for all expenses and other amounts actually incurred in any action or proceeding in which the director, corporate secretary, or Section 16 Officer is or may be involved by reason of the fact that he or she is or was a Smurfit WestRock director, corporate secretary or Section 16 Officer, or is or was otherwise serving Smurfit WestRock or other entities at the Company’s request, on the terms and conditions set forth in the Deeds of Indemnification. Further, Smurfit WestRock agrees, to the fullest extent permitted by the laws of Ireland, to advance expenses incurred in defense of these proceedings, on the terms and conditions set forth in the Deeds of Indemnification. The Deeds of Indemnification also provide procedures for requesting and obtaining indemnification and advancement of expenses, to the fullest extent permitted by the laws of Ireland.

 

Because Smurfit WestRock is an Irish public limited company, the Irish Companies Act 2014 only permits Smurfit WestRock to pay the costs or discharge the liability of an officer (as defined in the Irish Companies Act 2014) where judgment is given in his/her favor in any civil or criminal action in respect of such costs or liability, or where an Irish court grants relief because the officer acted honestly and reasonably and ought fairly to be excused. Accordingly, also effective July 5, 2024, Smurfit WestRock US Holdings Corporation, a Delaware corporation (“Smurfit US Holdings”) and a subsidiary of Smurfit WestRock, entered into indemnification agreements (the “Indemnification Agreements”) with the directors, the corporate secretary and the Section 16 Officers of Smurfit WestRock. The Indemnification Agreements, which are governed under the laws of the State of Delaware, provide indemnification to such directors, corporate secretary and Section 16 Officers, provided such directors, corporate secretary and Section 16 Officers act in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Company, to the fullest extent permitted by Delaware law, for all expenses and other amounts actually incurred in any action or proceeding in which the director, corporate secretary or Section 16 Officer is or may be involved by reason of the fact that he or she is or was a Smurfit WestRock director, Section 16 Officer or corporate secretary, or is or was otherwise serving Smurfit WestRock or other entities at Smurfit WestRock’s request, on the terms and conditions set forth in the Indemnification Agreements. Further, Smurfit US Holdings agrees to advance expenses incurred in defense of these proceedings, on the terms and conditions set forth in the Indemnification Agreements. The Indemnification Agreements also provide procedures for requesting and obtaining indemnification and advancement of expenses.

 

The foregoing descriptions of the Deeds of Indemnification and Indemnification Agreements are general descriptions only and are qualified in their entirety by reference to the Form of Deed of Indemnification and Form of Indemnification Agreement, which are filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

 

1

 

 

New Credit Agreement

 

On June 28, 2024, Smurfit Kappa entered into a Multicurrency Term and Revolving Facilities Agreement (the “New Credit Agreement”) among Smurfit Kappa, as guarantor, Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland (“SKI”) and wholly-owned subsidiary of Smurfit Kappa, as obligor’s agent and guarantor, Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland (“SKT”) and wholly-owned subsidiary of Smurfit Kappa, as borrower (with respect to the Term Loan Facility and Revolving Credit Facility (each as defined below)) and guarantor, and Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland (as successor-in-interest to Smurfit Kappa Acquisitions, “SKA”) and wholly-owned subsidiary of Smurfit Kappa, as borrower (with respect to the Revolving Credit Facility only) and guarantor, and certain other subsidiaries of Smurfit Kappa from time to time party thereto as guarantors, the lenders party thereto and Wells Fargo Bank, National Association, as agent, providing for (i) a U.S. dollar term loan facility in an aggregate principal amount of $600 million (the “Term Loan Facility”), (ii) a multicurrency revolving loan facility in an aggregate principal amount of $4.5 billion (the “Revolving Credit Facility”) and (iii) a swingline sub-facility in an aggregate principal amount of $500 million, which backstops the CP Program (as defined below). On July 2, 2024, each of Smurfit US Holdings, WestRock, WRKCo Inc., WestRock MWV, LLC and WestRock RKT, LLC entered into an Accession Letter to guarantee the obligations of SKT ULC and SKA ULC under the New Credit Agreement, effective on the effective time of the Merger (collectively, the “Guarantor Accession Letters”). On July 2, 2024, the Term Loan Facility was subsequently cancelled following entry into the Second CoBank Amendment (as defined below). On July 5, 2024, Smurfit WestRock entered into an Accession Letter (together with the Guarantor Accession Letters, the “Accession Letters”) to guarantee the obligations of SKT and SKA under the New Credit Agreement, effective on the effective time of the Merger.

 

Loans under the Revolving Credit Facility may be drawn in U.S. dollars, Euro, Pounds Sterling, Swiss Francs, Japanese Yen, Swedish Kronor and Canadian Dollars, with a borrower (or the obligors’ agent on behalf of a borrower) selecting the currency of a loan under the Revolving Credit Facility. Loans under the Revolving Credit Facility will bear interest at (a) in the case of loans denominated in U.S. dollars, Term SOFR, (b) in the case of loans denominated in Euro, EURIBOR, (c) in the case of loans denominated in Pounds Sterling, SONIA, (d) in the case of loans denominated in Swiss Francs, SARON, (d) in the case of loans denominated in Japanese Yen, TONAR, (e) in the case of loans denominated in Swedish Kronor, STIBOR, and (f) in the case of loans denominated in Canadian Dollars, CORRA, and in each case plus an applicable interest rate margin that will fluctuate between 0.30% per annum and 0.85% per annum, based upon Smurfit WestRock’s corporate credit ratings at such time. The New Credit Agreement provides for the reduction of the applicable interest rate margin upon the satisfaction of key performance indicators and sustainability performance targets to be established as set forth therein. Term SOFR loans will be subject to a credit spread adjustment equal to 0.10% per annum.  In addition, unused revolving commitments under the Revolving Credit Facility will accrue a commitment fee equal to 35% of the applicable interest rate margin.  The Revolving Credit Facility also requires the payment of a utilization fee ranging from 0.00% to 0.40% per annum on outstanding revolving loans, based on the utilization rate of the Revolving Credit Facility. The Revolving Credit Facility has an initial term of five years from the date of the New Credit Agreement, which may be extended on two occasions by up to an aggregate of two years. Loans under the Revolving Credit Facility may be prepaid at any time without premium. The Revolving Credit Facility is unsecured.

 

 

The New Credit Agreement contains usual and customary representations and warranties, and usual and customary affirmative and negative covenants, including negative pledge, disposals, indebtedness and mergers. The New Credit Agreement does not impose any financial covenants. The New Credit Agreement also contains usual and customary events of default, including: non-payment of principal, interest, fees and other amounts; breach of obligations, material breach of a representation or warranty; cross acceleration and payment default on certain other debt; bankruptcy or insolvency; unlawfulness and repudiation, the occurrence of which, following any applicable grace period, would permit the lenders to, among other things, declare the principal, accrued interest and other obligations under the New Credit Agreement to be immediately due and payable.

  

The foregoing summary of the New Credit Agreement and the Accession Letters does not purport to be complete and is subject to and qualified in its entirety by reference to the New Credit Agreement and the Accession Letters, copies of which are filed as Exhibits 10.3 to 10.9, as applicable, hereto and incorporated herein by reference.

 

CoBank Credit Agreement

 

Effective July 5, 2024, pursuant to the Joinder Agreement dated as of July 1, 2024, Smurfit Westrock, Smurfit Kappa and certain subsidiaries of Smurfit Kappa became guarantors under the Amended and Restated Credit Agreement, dated as of July 7, 2022 (the “Original CoBank Credit Agreement”), as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of September 27, 2023 (the “First CoBank Amendment”) and the Second Amendment to Amended and Restated Credit Agreement, dated as of July 1, 2024 (the “Second CoBank Amendment” and the Original CoBank Credit Agreement as amended by the First CoBank Amendment and the Second CoBank Amendment, the “CoBank Credit Agreement”), by and among WestRock, as a guarantor, WestRock Southeast, LLC, a Delaware limited liability company and a wholly owned subsidiary of WestRock, as the borrower (the “CoBank Credit Facility Borrower”), certain other subsidiaries of WestRock from time to time party thereto, as guarantors, the lenders from time to time party thereto and CoBank, ACB, as administrative agent.

 

2

 

 

The CoBank Credit Agreement provides for a seven-year senior unsecured term loan facility in an aggregate principal amount of $600,000,000 and matures in 2029 (the “CoBank Credit Facility”).

 

At the CoBank Credit Facility Borrower’s option, loans issued under the CoBank Credit Facility bear interest at either Term SOFR or an alternate base rate, in each case plus an applicable interest rate margin that will fluctuate between 1.650% per annum and 2.275% per annum (for Term SOFR loans) or between 0.650% per annum and 1.275% per annum (for alternate base rate loans), based upon WestRock’s corporate credit ratings at such time.  In addition, Term SOFR loans will be subject to a credit spread adjustment equal to 0.10% per annum.  Loans under the CoBank Credit Facility may be prepaid at any time without premium.

 

The CoBank Credit Agreement contains usual and customary representations and warranties, and usual and customary affirmative and negative covenants, including: negative pledge, disposals, indebtedness, mergers and sales of assets.  The CoBank Credit Agreement also contains usual and customary events of default, including: non-payment of principal, interest, fees and other amounts; breach of obligations, material breach of a representation or warranty; cross acceleration and payment default on certain other debt; bankruptcy or insolvency; unlawfulness and repudiation, the occurrence of which, following any applicable grace period, would permit the lenders to, among other things, declare the principal, accrued interest and other obligations under the CoBank Credit Agreement to be immediately due and payable.

 

The foregoing summary of the CoBank Credit Agreement, the First CoBank Amendment and the Second CoBank Amendment does not purport to be complete and is subject to and qualified in its entirety by reference to the CoBank Credit Agreement, the First CoBank Amendment and the Second CoBank Amendment, copies of which are incorporated by reference or filed, as applicable, as Exhibits 10.10, 10.11 and 10.12 hereto, respectively, and incorporated herein by reference.

 

Guarantees of Existing Bond Indebtedness of Subsidiaries of Smurfit Kappa

 

SKA is a party to (i) an indenture, dated as of February 16, 2015, by and among SKA, the guarantors party thereto and Deutsche Trustee Company Limited, as trustee (the “2015 Indenture”), under which SKA has issued and outstanding €250 million aggregate principal amount of 2.750% Senior Notes due 2025 and (ii) an indenture, dated as of June 28, 2018, by and among SKA, the guarantors party thereto and Deutsche Trustee Company Limited, as trustee, as amended and supplemented by the first supplemental indenture, dated as of February 4, 2019, and the second supplemental indenture, dated as of October 5, 2023 (as amended and supplemented, the “2018 Indenture” and, together with the 2015 Indenture, the “SKA Indentures”), under which SKA has issued and outstanding €1 billion aggregate principal amount of 2.875% Senior Notes due 2026.

 

Smurfit Kappa Treasury Funding Designated Activity Company, a designated activity company organized under the laws of Ireland (as successor-in-interest to Smurfit Capital Funding PLC, “SKT DAC”) and wholly-owned subsidiary of Smurfit Kappa, is a party to an indenture, dated as of November 15, 1995, by and among SKT DAC, the guarantors party thereto and The Bank of New York Mellon (as successor trustee to Chemical Bank), as trustee (the “SKT DAC Indenture”), under which SKT DAC has issued and outstanding $292.3 million aggregate principal amount of 7.5% debentures due 2025.

 

SKT is a party to (i) an indenture, dated as of September 15, 2019, by and among SKT, the guarantors party thereto and Deutsche Trustee Company Limited, as trustee, as amended and supplemented by the first supplemental indenture, dated as of October 5, 2023 (as amended and supplemented, the “2019 Indenture”), under which SKT has issued and outstanding €750 million aggregate principal amount of 1.500% Senior Notes due 2027; (ii) an indenture, dated as of September 22, 2021, by and among SKT, the guarantors party thereto and Deutsche Trustee Company Limited, as trustee, as amended and supplemented by the first supplemental indenture, dated as of October 5, 2023 (as amended and supplemented, the “2021 Indenture”), under which SKT has issued and outstanding €500 million aggregate principal amount of 0.500% Senior Notes due 2029 and €500 million aggregate principal amount of 1.000% Senior Notes due 2033; and (iii) an indenture, dated as of April 3, 2024, by and among SKT, the guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee (the “2024 Indenture” and, together with the 2019 Indenture and the 2021 Indenture, the “SKT Indentures” and, together with the SKA Indentures and the SKT DAC Indenture, the “Smurfit Subsidiary Indentures”), under which SKT has issued and outstanding $750 million aggregate principal amount of 5.200% Senior Notes due 2030, $1 billion aggregate principal amount of 5.438% Senior Notes due 2034 and $1 billion aggregate principal amount of 5.777% Senior Notes due 2054.

 

3

 

 

In connection with the Combination, SKA, SKT DAC, and SKT entered into supplemental indentures to add Smurfit WestRock, Smurfit US Holdings, WestRock, WRKCo Inc., WestRock MWV, LLC and WestRock RKT, LLC (collectively, the “Smurfit Bond Debt New Guarantors”) as guarantors of the obligations of (a) SKA under the SKA Indentures and all outstanding debt securities issued thereunder; (b) SKT DAC under the SKT DAC Indenture and all outstanding debt securities issued thereunder; and (c) SKT under the SKT Indentures and all outstanding debt securities issued thereunder.

 

On July 5, 2024, (i) SKA, the Smurfit Bond Debt New Guarantors and Deutsche Trustee Company Limited, as trustee, entered into the first supplemental indenture to the 2015 Indenture (the “First Supplemental Indenture to the 2015 Indenture”) and the third supplemental indenture to the 2018 Indenture (the “Third Supplemental Indenture to the 2018 Indenture”); (ii) SKT DAC, certain existing guarantors, the Smurfit Bond Debt New Guarantors and The Bank of New York Mellon (as successor trustee to Chemical Bank), as trustee, entered into the first supplemental indenture to the SKT DAC Indenture (the “First Supplemental Indenture to the SKT DAC Indenture”); (iii) SKT, the Smurfit Bond Debt New Guarantors and Deutsche Trust Company Limited, as trustee, entered into the second supplemental indenture to the 2019 Indenture (the “Second Supplemental Indenture to the 2019 Indenture”) and the second supplemental indenture to the 2021 Indenture (the “Second Supplemental Indenture to the 2021 Indenture”); and (iv) SKT, the Smurfit Bond Debt New Guarantors and Deutsche Bank Trust Company Americas, as trustee, entered into the first supplemental indenture to the 2024 Indenture (the “First Supplemental Indenture to the 2024 Indenture” and, together with the First Supplemental Indenture to the 2015 Indenture, the Third Supplemental Indenture to the 2018 Indenture, the First Supplemental Indenture to the SKT DAC Indenture, the Second Supplemental Indenture to the 2019 Indenture and the Second Supplemental Indenture to the 2021 Indenture, the “Smurfit Supplemental Indentures”). The guarantees of the Smurfit Bond Debt New Guarantors may be released upon the circumstances described in the applicable Smurfit Supplemental Indenture, including upon the merger with, consolidation into or transfer of all or substantially all of the assets of any guarantor to another obligor in respect of the applicable Smurfit Indenture.

 

The foregoing summary of the Smurfit Supplemental Indentures does not purport to be complete and is subject to and qualified in its entirety by reference to the Smurfit Supplemental Indentures and Smurfit Subsidiary Indentures, copies of which are filed as Exhibits 4.1 through 4.16 hereto and incorporated herein by reference.

 

4

 

 

Guarantees of Existing Bond Indebtedness of Subsidiaries of WestRock

 

WRKCo Inc., a Delaware corporation (“WRKCo”) and wholly-owned subsidiary of WestRock, is a party to (i) an indenture, dated as of August 24, 2017, by and among WRKCo, WestRock, WestRock MWV, LLC, WestRock RKT, LLC and The Bank of New York Mellon Trust Company, N.A., as trustee, as amended and supplemented by the first supplemental indenture, dated as of August 24, 2017, the second supplemental indenture, dated as of March 6, 2018, the third supplemental indenture, dated as of November 2, 2018, the fourth supplemental indenture, dated as of September 22, 2023 and the fifth supplemental indenture, dated as of September 26, 2023 (as amended and supplemented, the “2017 Indenture”), under which WRKCo has issued and outstanding $600 million aggregate principal amount of 3.750% Senior Notes due 2025, $500 million aggregate principal amount of 3.375% Senior Notes due 2027 and $600 million aggregate principal amount of 4.000% Senior Notes due 2028; and (ii) an indenture, dated as of December 3, 2018, by and among WRKCo, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, as amended and supplemented by the first supplemental indenture, dated as of December 3, 2018, the second supplemental indenture, dated as of May 20, 2019, the third supplemental indenture, dated as of June 3, 2020 and the fourth supplemental indenture, dated as of September 26, 2023 (as amended and supplemented, the “2018 Indenture” and, together with the 2017 Indenture, the “WRKCo Indentures”), under which WRKCo has issued $750 million aggregate principal amount of 4.650% Senior Notes due 2026, $500 million aggregate principal amount of 3.900% Senior Notes due 2028, $750 million aggregate principal amount of 4.900% Senior Notes due 2029, $500 million aggregate principal amount of 4.200% Senior Notes due 2032 and $600 million aggregate principal amount of 3.000% Senior Notes due 2033.

 

WestRock MWV, LLC (as successor-in-interest to Westvaco Corporation, The Mead Corporation and MeadWestvaco Corporation, “MWV”), a wholly-owned subsidiary of WestRock, is a party to (i) an indenture, dated as of March 1, 1983, between MWV and The Bank of New York Mellon (as successor to Irving Trust Company), as trustee, as amended and supplemented by the first supplemental indenture, dated as of January 31, 2002, the second supplemental indenture, dated as of December 31, 2002, the third supplemental indenture, dated as of July 1, 2015, and the fourth supplemental indenture, dated as of November 2, 2018 (as amended and supplemented, the “1983 Indenture”), under which MWV has issued and outstanding $400 million aggregate principal amount of 8.200% Debentures due 2030 and $300 million aggregate principal amount of 7.950% Debentures due 2031; (ii) an indenture, dated as of February 1, 1993, between MWV and The Bank of New York Mellon (as successor to The First National Bank of Chicago), as trustee, as amended and supplemented by the first supplemental indenture, dated as of January 31, 2002, the second supplemental indenture, dated as of December 31, 2002, the third supplemental indenture, dated as of December 31, 2002, the fourth supplemental indenture, dated as of July 1, 2015 and the fifth supplemental indenture, dated as of November 2, 2018 (as amended and supplemented, the “1993 Indenture”), under which MWV has issued and outstanding $150 million aggregate principal amount of 6.840% Debentures due 2037 and $150 million aggregate principal amount of 7.550% Debentures due 2047; and (iii) and an indenture, dated as of April 2, 2002, between MWV and The Bank of New York Mellon (as successor to the Bank of New York), as trustee, as amended and supplemented by the first supplemental indenture, dated as of July 1, 2015, and the second supplemental indenture, dated as of November 2, 2018 (as amended and supplemented, the “2002 Indenture” and, together with the 1983 Indenture and the 1993 Indenture, the “MWV Indentures” and, together with the WRKCo Indentures, the “WestRock Subsidiary Indentures”), under which MWV has issued and outstanding $300 aggregate principal amount of 6.800% Debentures due 2032.

 

In connection with the Combination, WRKCo and MWV entered into supplemental indentures to add Smurfit WestRock, Smurfit Kappa, SKA, SKT DAC, SKT, Smurfit Kappa Investments Limited, Smurfit US Holdings and Smurfit International B.V. (collectively, the “WestRock Bond Debt New Guarantors” and, together with the Smurfit Bond Debt New Guarantors, the “New Guarantors”) as guarantors of the obligations of (a) WRKCo under the WRKCo Indentures and all outstanding debt securities issued thereunder and (b) MWV under the MWV Indentures and all outstanding debt securities issued thereunder.

 

5

 

 

On July 5, 2024, (i) WRKCo, certain existing guarantors, the WestRock Bond Debt New Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee, entered into the sixth supplemental indenture to the 2017 Indenture (the “Sixth Supplemental Indenture to the 2017 Indenture”) and the fifth supplemental indenture to the 2018 Indenture (the “Fifth Supplemental Indenture to the 2018 Indenture”); and (ii) MWV, the WestRock Bond Debt New Guarantors and The Bank of New York Mellon, as trustee, entered into the fifth supplemental indenture to the 1983 Indenture (the “Fifth Supplemental Indenture to the 1983 Indenture”), the sixth supplemental indenture to the 1993 Indenture (the “Sixth Supplemental Indenture to the 1993 Indenture”) and the third supplemental indenture to the 2002 Indenture (the “Third Supplemental Indenture to the 2002 Indenture” and, together with the Sixth Supplemental Indenture to the 2017 Indenture, the Fifth Supplemental Indenture to the 2018 Indenture, the Fifth Supplemental Indenture to the 1983 Indenture, the Sixth Supplemental Indenture to the 1993 Indenture and the Third Supplemental Indenture to the 2002 Indenture, the “WestRock Supplemental Indentures”). The guarantees of the WestRock Bond Debt New Guarantors may be released upon the circumstances described in the applicable WestRock Supplemental Indenture, including upon the merger with, consolidation into or transfer of all or substantially all of the assets of any guarantor to another obligor in respect of the applicable WestRock Subsidiary Indenture.

 

The foregoing summary of the WestRock Supplemental Indentures does not purport to be complete and is subject to and qualified in its entirety by reference to the WestRock Supplemental Indentures and WestRock Subsidiary Indentures, copies of which are filed as Exhibits 4.23, 4.29, 4.35, 4.42 and 4.46 and incorporated herein by reference.

 

Amended and Restated WRKCo Commercial Paper Program

 

On July 5, 2024, WRKCo entered into definitive documentation to amend and restate its unsecured commercial paper program (as so amended and restated, the “CP Program”) previously established on December 7, 2018 pursuant to which WRKCo, may issue short-term, unsecured commercial paper notes (the “CP Notes”). Amounts available under the CP Program may be borrowed, repaid and re-borrowed from time to time, with the aggregate principal amount of CP Notes outstanding under the CP Program at any time not to exceed $1.0 billion. The net proceeds of issuances of the CP Notes are expected to be used for general corporate purposes.

 

The maturities of the CP Notes will vary but may not exceed 397 days from the date of issue. The CP Notes will be sold under customary terms in the commercial paper market and will be issued at a discount from par or, alternatively, will be issued at par and bear varying interest rates on a fixed or floating basis.

 

Initially, three commercial paper dealers will act as dealers under the CP Program (each a “Dealer” and, collectively, the “Dealers”) pursuant to the terms and conditions of an amended and restated commercial paper dealer agreement entered into among WRKCo, the New Guarantors (as defined below) and each Dealer (as so amended and restated, each, a “Dealer Agreement”). A national bank will act as issuing and paying agent under the CP Program.

 

WestRock, WestRock MWV, LLC, WestRock RKT, LLC and the WestRock Bond Debt New Guarantors have agreed to guarantee payment in full of the principal of and interest (if any) on the CP Notes, pursuant to a guarantee delivered by the New Guarantors (other than WRKCo).

 

Each Dealer Agreement provides the terms under which the applicable Dealer will either purchase CP Notes from WRKCo or arrange for the sale of the CP Notes by WRKCo to one or more purchasers, in each case pursuant to an exemption from federal and state securities laws. Each Dealer Agreement contains customary representations, warranties, covenants and indemnification provisions. The Dealer Agreements are substantially identical in all material respects except as to the parties thereto and the notice provisions.

 

From time to time, one or more of the Dealers and certain of their respective affiliates have provided, and may in the future provide, commercial banking, investment banking and other financial advisory services to the Company and its affiliates for which they have received or will receive customary fees and expenses.

  

The CP Notes have not been and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), or state securities laws and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable state laws. The information contained in this Current Report on Form 8-K is neither an offer to sell nor a solicitation of an offer to buy any securities.

 

6

 

 

The foregoing summary of the Dealer Agreements does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Dealer Agreements, a form of which is attached hereto as Exhibit 10.13 and is incorporated herein by reference.

 

Accounts Receivables Securitization Facility

 

On July 5, 2024, Smurfit WestRock, solely in its role as new parent, WestRock, solely in its role as existing parent WestRock Financial, Inc., as borrower (“WFI”), WestRock Converting, LLC, as servicer (the “Servicer”), and certain of WestRock’s subsidiaries, as originators (the “Originators”), entered into Omnibus Amendment No. 3 (“Omnibus Amendment”) amending (i) the Eighth Amended and Restated Credit and Security Agreement, dated as of July 22, 2016 (as amended, modified or supplemented through July 5, 2024, the “Credit and Security Agreement”), by and among WFI, the Servicer, Coöperatieve Rabobank U.A., New York Branch (“Rabo”), as administrative agent, and the lenders from time to time party thereto, and (ii) the Sixth Amended and Restated Receivables Sale Agreement, dated as of July 22, 2016 (as amended, modified or supplemented through July 5, 2024), by and among the Originators and WFI, relating to WestRock’s accounts receivable securitization facility (the “Receivables Securitization Facility”). The Omnibus Amendment provides for, among other things, (i) extension of the scheduled termination date of the Receivables Securitization Facility until June 30, 2027, (ii) release of WestRock, as existing performance guarantor, and replacement with Smurfit WestRock, as new performance guarantor, and Smurfit WestRock entering into a new performance undertaking in favor of WFI, (iii) amendments to certain amortization events and termination events and (iv) amendment of certain other terms and conditions in connection with the consummation of the Combination.

 

Some or all of the parties to the Omnibus Amendment, or their affiliates, have in the past provided investment or commercial banking services to WestRock and its affiliates for which they received customary fees and expenses, and they may provide similar services in the future.

 

Item 1.02. Termination of a Material Definitive Agreement.

 

On July 5, 2024, Smurfit Kappa Investments Limited pre-paid and cancelled the $1.35 billion revolving credit agreement, by and among Smurfit Kappa Investments Limited and National Westminster Bank plc, as agent, among other parties set out therein (the “Existing Revolving Credit Agreement”). There were no material early termination penalties incurred as a result of the termination of the Existing Revolving Credit Agreement.

 

On July 5, 2024, WestRock submitted prepayment and cancelation notices under the following: (i) the €2.3 billion revolving credit agreement, by and among WestRock, WRKCo Inc., WestRock MWV, LLC, WestRock RKT, LLC, WestRock Luxembourg S.a.r.l. and WestRock Company of Canada Corp. and Wells Fargo Bank, National Association, as administrative agent among other parties set out therein (the “Wells Fargo Revolving Credit Agreement”); (ii) the €700 million revolving credit agreement, by and among WestRock, WRKCo Inc., WestRock MWV, LLC, WestRock RKT, LLC, WestRock Luxembourg S.a.r.l., Multi Packaging Solutions Limited and Coöperatieve Rabobank U.A., New York Branch, as administrative agent, among other parties set out therein (the “Rabo Revolving Credit Agreement”); and (iii) the $750 million delayed draw term loan agreement, by and among WestRock, WRKCo Inc., WestRock MWV, LLC, WestRock RKT, LLC, WestRock Company of Canada Corp., WestRock Luxembourg S.a.r.l. and Wells Fargo Bank, National Association, as administrative agent, among other parties set out therein (the “Gondi DDTL Agreement”).

 

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Item 2.01.Completion of Acquisition or Disposition of Assets.

 

The information contained in the Introductory Note of this Current Report on Form 8-K is incorporated herein by reference.

 

Pursuant to the Transaction Agreement, each issued ordinary share, par value €0.001 per share, of Smurfit Kappa (a “Smurfit Kappa Share”) was exchanged for one ordinary share, par value $0.001 per share, of Smurfit WestRock (a “Smurfit WestRock Share”), and each share of common stock, par value $0.01 per share, of WestRock (the “WestRock Common Stock”), other than shares of WestRock Common Stock issued and outstanding immediately prior to the effective time of the Merger and held by a holder of record who did not vote in favor of the approval and adoption of the Transaction Agreement (or consent thereto in writing) and properly demanded appraisal of such shares, was converted into the right to receive one Smurfit WestRock Share and $5.00 in cash (the “Merger Consideration”). Also pursuant to the Transaction Agreement, each Smurfit Kappa equity award was converted into a Smurfit WestRock equity award at the effective time of the Scheme. 

 

In addition, pursuant to the Transaction Agreement, at the effective time of the Merger (the “Merger Effective Time”):

 

(i)       each option to purchase shares of WestRock Common Stock (each a “WestRock Option”) granted under any equity plan of WestRock so designated under the Transaction Agreement (each, a “Westrock Equity Plan”) that was outstanding, unexercised and held by a current employee or independent contractor of WestRock or its subsidiaries as of immediately prior to the Merger Effective Time, whether or not then vested or exercisable, was assumed by Smurfit WestRock and was converted into an option to acquire (a) that number of whole Smurfit WestRock Shares (rounded down to the nearest whole number of shares) equal to the product obtained by multiplying (x) the number of shares of WestRock Common Stock subject to such WestRock Option by (y) the Equity Award Exchange Ratio, (b) at an exercise price per Smurfit WestRock Share (rounded up to the nearest whole cent) equal to the quotient obtained by dividing (x) the exercise price per share of WestRock Common Stock of such WestRock Option by (y) the Equity Award Exchange Ratio;

 

(ii)       each WestRock Option granted under any WestRock Equity Plan that was outstanding, unexercised and held by an individual who was not a current employee or independent contractor of WestRock or its subsidiaries as of immediately prior to the Merger Effective Time was cancelled in consideration for the right to receive, within ten business days following the Merger Effective Time, the Merger Consideration, without interest and less applicable withholding taxes, in respect of each net WestRock Option share, as calculated in accordance with the Transaction Agreement subject to such WestRock Option immediately prior to the Merger Effective Time (calculated based on the excess of the value of the Merger Consideration over the applicable exercise price);

 

(iii)       each outstanding award of restricted stock units that corresponds to a number of shares of WestRock Common Stock (each, a “WestRock RSU Award”) under any WestRock Equity Plan other than a WestRock Director RSU Award (as defined below) was assumed by Smurfit WestRock and was converted into (a) an award of restricted stock units corresponding to a number of Smurfit WestRock Shares (rounded down to the nearest whole number of shares) equal to the product obtained by multiplying (1) the number of shares of WestRock Common Stock subject to such WestRock RSU Award as of immediately prior to the Merger Effective Time by (2) the Share Consideration and (b) an unvested cash award equal to the product obtained by multiplying (1) the number of shares of WestRock Common Stock subject to such WestRock RSU Award as of immediately prior to the Merger Effective Time by (2) the Cash Consideration. In the case of a performance-based WestRock RSU Award, the number of shares of WestRock Common Stock subject to such WestRock RSU Award as of immediately prior to the Merger Effective Time was determined by deeming the applicable performance goals for any performance period that had not been completed as of the Merger Effective Time to have been achieved at the greater of the target level and the average of the actual level of performance of similar awards over the last three years prior to the Closing Date, except that the performance goals for any performance-based WestRock RSU Award granted after the date of the Transaction Agreement was deemed achieved at the target level of performance; and

 

(iv)       each outstanding WestRock RSU Award that was granted to a non-employee member of the board of directors of WestRock (a “WestRock Director RSU Award”) was fully vested as of immediately prior to the Merger Effective Time, and all rights in respect thereof was cancelled and automatically converted into the right to receive the Merger Consideration in respect of each of a number of shares of WestRock Common Stock equal to the number of shares of WestRock Common Stock underlying such WestRock Director RSU Award, provided that delivery of the Merger Consideration with respect to such WestRock Common Stock will be delayed to the extent necessary to comply with any applicable deferred compensation tax requirements.

 

The foregoing descriptions of the Transaction Agreement are general descriptions only and are qualified in their entirety by reference to the full text of the Transaction Agreement, which is included as Annex A to Smurfit WestRock’s registration statement on Form S-4 (file number 333-278185), declared effective by the United States Securities and Exchange Commission (the “SEC”) on April 26, 2024 (the “Registration Statement”) and incorporated herein by reference. A summary of the principal terms of the Transaction Agreement is set forth in the section entitled “The Transaction Agreement” contained in the Registration Statement, which summary is incorporated herein by reference.

 

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Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.

 

The information provided under Item 1.01 of this Current Report on Form 8-K regarding the New Credit Agreement, the CoBank Credit Agreement, the CP Program, the Guarantees of Existing Bond Indebtedness of Subsidiaries of Smurfit Kappa, and the Guarantees of Existing Bond Indebtedness of Subsidiaries of WestRock is incorporated by reference into this Item 2.03.

 

Item 3.02.Unregistered Shares of Equity Securities.

 

On July 5, 2024, following the requisite approval of the Smurfit WestRock board of directors (the “Board of Directors”), the Company allotted and issued 261,954,617 ordinary shares of $0.001 each in the capital of Smurfit WestRock (the “New Smurfit WestRock Shares”), credited as fully paid up, to each holder of Scheme Shares (as that term is defined in the Transaction Agreement) as appearing on Smurfit Kappa’s register of members at the Scheme Record Time (as that term is defined in the Transaction Agreement) with a view to and for the purpose of acquiring the Scheme Shares on the basis of one New Smurfit WestRock Share for each Scheme Share.

 

Item 3.03.Material Modification to the Rights of Security Holders.

 

In connection with the Combination, on July 5, 2024, each Smurfit Kappa Share was exchanged for a Smurfit WestRock Share, and each share of WestRock Common Stock issued and outstanding immediately prior to the effectiveness of the Combination, other than certain shares of WestRock Common Stock held by a holder of record who did not vote in favor of the approval and adoption of the Transaction Agreement (or consent thereto in writing) and properly demanded appraisal of such shares, was converted into the right to receive the Merger Consideration. The rights of holders of Smurfit WestRock Shares are governed by the Amended Constitution (as defined below). The Amended Constitution (as defined below) is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference, and the description of Smurfit WestRock Shares contained under the caption “Description of Smurfit WestRock Shares and the Smurfit WestRock Constitution” in the Registration Statement is incorporated herein by reference.

 

The information set forth in Items 1.01, 2.01, 2.03 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

 

Item 5.01.Changes in Control of Registrant.

 

The information provided under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.

 

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

 

Departure of Directors

 

In connection with the Combination, effective as of July 5, 2024, Irial Finan, Anne Anderson, Frits Beurskens, James Lawrence, Carol Fairweather, Jørgen Buhl Rasmussen, Lourdes Melgar, Kaisa Hietala and Mary Lynn Ferguson-McHugh resigned as members of the Smurfit Kappa board of directors. The board of directors of WestRock was removed in connection with the Combination; former WestRock directors Colleen F. Arnold, Timothy J. Bernlohr, J. Powell Brown, Terrell K. Crews, Russell M. Currey, Suzan F. Harrison, Gracia C. Martore, James E. Nevels, E. Jean Savage, David Sewell, Dmitri L. Stockton and Alan D. Wilson ceased to serve as WestRock directors following the removal.

 

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Election of Directors

 

In connection with the Combination, effective as of July 5, 2024, the following individuals were appointed to serve on the Board of Directors until the next annual general meeting of the Company:

 

·Alan D. Wilson
·Carol Fairweather
·Colleen F. Arnold
·Dmitri L. Stockton
·Irial Finan
·Jørgen Buhl Rasmussen
·Kaisa Hietala
·Lourdes Melgar
·Mary Lynn Ferguson-McHugh
·Suzan F. Harrison
·Timothy J. Bernlohr
·Terrell K. Crews

 

Each of Anthony Smurfit and Ken Bowles had previously been appointed to serve on the Board of Directors in connection with the announcement of the Combination on September 11, 2023, to serve on the Board of Directors until the next annual general meeting of the Company.

 

In connection with the Combination, the following committees of the Board of Directors were established and constituted as follows:

 

Audit Committee

 

·Terrell K. Crews (Chair)
·Carol Fairweather
·Dmitri L. Stockton
·Lourdes Melgar
·Suzan F. Harrison

 

Compensation Committee

 

·Timothy J. Bernlohr (Chair)
·Alan D. Wilson
·Colleen F. Arnold
·Jørgen Buhl Rasmussen
·Mary Lynn Ferguson-McHugh

 

Nomination Committee

 

·Irial Finan (Chair)
·Alan D. Wilson
·Kaisa Hietala
·Suzan F. Harrison

 

Sustainability Committee

 

·Kaisa Hietala (Chair)
·Colleen F. Arnold
·Dmitri L. Stockton
·Lourdes Melgar

 

Executive Committee

 

·Irial Finan (Chair)
·Anthony Smurfit
·Carol Fairweather
·Terrell K. Crews
·Timothy J. Bernlohr

 

Finance Committee

 

·Carol Fairweather (Chair)
·Jørgen Buhl Rasmussen
·Mary Lynn Ferguson-McHugh
·Terrell K. Crews
·Timothy J. Bernlohr

 

Copies of the charters of each of the committees is available on the Smurfit WestRock website at www.smurfitwestrock.com.

 

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Non-executive members of the Board of Directors will be eligible to participate in a non-executive director compensation program as set forth below.

 

Element  Amount ($) 
Base Cash Retainer   120,000 
Additional Cash Retainers     
Non-Executive Chair   100,000 
Audit Committee Chair   25,000 
Compensation Committee Chair   20,000 
Nomination Committee Chair   20,000 
Sustainability Committee Chair   20,000 
Finance Committee Chair   20,000 
Annual Stock Grant – Directors (other than Non-Executive Chair)   175,000 
Annual Stock Grant – Non-Executive Chair   275,000 

 

Appointment of Officers

 

In connection with the Combination, the following individuals were elected, effective as of July 5, 2024, as officers of Smurfit WestRock in each case until their successors are chosen and qualify in their stead or until their earlier death, resignation or removal:

 

·Irial Finan, Chair
·Anthony Smurfit, President and Group Chief Executive Officer (Principal Executive Officer)
·Ken Bowles, Executive Vice President and Group Chief Financial Officer (Principal Financial Officer)
·Laurent Sellier, President & Chief Executive Officer, North America (including Mexico)
·Saverio Mayer, President & Chief Executive Officer, Europe, MEA & APAC
·Jairo Lorenzatto, President & Chief Executive Officer, LATAM
·Irene Page, Group Chief Accounting Officer (Principal Accounting Officer)

 

Additional biographical information required by this Item 5.02 with respect to each of the above officers, other than Irene Page, can be found under the section entitled “Management and Corporate Governance of Smurfit WestRock Following the Combination” of the Registration Statement, and is incorporated herein by reference.

 

Irene Page, age 54, currently serves as the Chief Accounting Officer of Smurfit WestRock. She was previously the Group Financial Controller of Smurfit Kappa Group since 2016. Prior to serving in that role, Ms. Page held a number of finance roles in the UK, Paris and Dublin in SKG before being appointed as Assistant Group Financial Controller of SKG in 2005. She is a Fellow of the Chartered Association of Certified Accountants (FCCA) and holds a Bachelors of Business Studies (hons) degree from the University of Limerick.

 

Compensation Plans and Agreements

 

On July 5, 2024, prior to the completion of the Combination, the Board of Directors approved and adopted the following compensation plans, in which the executive officers of Smurfit WestRock are eligible to participate, subject to the terms and conditions thereof:

 

·2024 Long-Term Incentive Plan
·Annual Short-Term Incentive Plan
·Executive Severance Plan

 

In connection with the Combination, on July 5, 2024, Smurfit WestRock or one of its subsidiaries entered into the following service contracts and offer letters with the following officers:

 

·Service Contract between Smurfit Kappa Services Limited and Anthony Smurfit
·Service Contract between Smurfit Kappa Services Limited and Ken Bowles
·Offer Letter between Smurfit WestRock and Laurent Sellier
·Service Contract between Smurfit Kappa Italia S.p.A. and Saverio Mayer
·Offer Letter between Smurfit WestRock and Jairo Lorenzatto
·Service Contract between Smurfit Kappa Services Limited and Irene Page

 

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Summaries of the material terms of the foregoing compensation plans, service contracts (other than the service contract with Ms. Page, which is summarized below) and offer letters are set forth in the section of the Registration Statement entitled “Post-Completion Compensation Arrangements,” which summaries are incorporated herein by reference. Such summaries are qualified in their entirety by reference to the full text of such compensation plans, service contracts and offer letters, which are attached as exhibits to this Current Report on Form 8-K and incorporated herein by reference.

 

The service contract with Ms. Page provides that she will serve as Group Chief Accounting Officer, will receive an annual base salary of €416,112, will be eligible to participate in Smurfit WestRock’s annual incentive plan, long-term incentive plan, and health, welfare and other benefits programs, and will be provided with a car benefit. The service contract is terminable on not less than three months’ notice by either party. The employer will be entitled to terminate Ms. Page’s employment by making a payment in lieu of notice equal to the basic salary only that would have been due during the notice period. Ms. Page will be subject to confidentiality and intellectual property obligations both during employment and on the termination of employment. She will also be subject to non-competition covenants for a period of six months after the termination of her employment, as well as non-solicitation and non-dealing covenants for a period of 12 months after the termination of her employment.

 

The information provided under Item 1.01 of this Current Report on Form 8-K under the heading entitled “Indemnification Agreements” is incorporated by reference into this Item 5.02.

 

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

 

On July 5, 2024, following the requisite approval of the Board of Directors and Matsack Nominees Limited (the nominee shareholder of Smurfit WestRock immediately prior to Completion), Smurfit WestRock amended its memorandum of association and articles of association (as amended, the “Amended Constitution”), effective as of the consummation of the Combination. A copy of the Amended Constitution is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

 

Item 5.05.Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Conduct.

 

Effective as of the consummation of the Combination, Smurfit WestRock adopted its Code of Conduct for it directors and officers, a copy of which is available on the Smurfit WestRock website at www.smurfitwestrock.com. The information on the Smurfit WestRock website does not constitute part of this Current Report on Form 8-K and is not incorporated herein by reference.

 

Item 7.01.Regulation FD Disclosure.

 

On July 5, 2024, the Company released an announcement in connection with the High Court of Ireland’s sanction of the Scheme (the “Scheme Effectiveness Announcement”), which is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

On July 8, 2024, the Company released a press release and announcement in connection with the closing of the Combination and the Company’s listing on the New York Stock Exchange (the “Closing and NYSE Listing Announcement”) and regarding its total voting rights, which is furnished as Exhibit 99.2 to this Current Report on Form 8-K and is incorporated herein by reference.

 

On July 8, 2024, the Company released, via the Regulatory News Service in London, an announcement in connection with the Company’s listing on the London Stock Exchange (the “LSE Listing Announcement”) and the total voting rights of the Company, which is furnished as Exhibit 99.3 to this Form 8-K and is incorporated herein by reference. The LSE Listing Announcement was made in order to comply with disclosure requirements pursuant to the United Kingdom Financial Conduct Authority’s Disclosure Guidance and Transparency Rules (the “DTRs”).

 

On July 8, 2024, Smurfit Kappa released, via the Regulatory News Service in London and Dublin, an announcement in connection with its delisting from the Official List of the FCA and the LSE and its delisting from Euronext Dublin (the “Delisting Announcement”). The Delisting Announcement is furnished as Exhibit 99.4 to this Current Report on Form 8-K and is incorporated herein by reference. The Delisting Announcement was made in order to comply with disclosure requirements pursuant to the DTRs and the Listing Rules of Euronext Dublin.

 

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Item 9.01.Financial Statements and Exhibits.

 

(a) Financial Statements of Business Acquired

 

To be filed by amendment not later than 71 calendar days after the date this Current Report on Form 8-K is required to be filed.

 

(b) Pro Forma Financial Information

 

To be filed by amendment not later than 71 calendar days after the date this Current Report on Form 8-K is required to be filed.

 

(d) Exhibits.

 

Exhibit
Number

  

Description of Exhibit

2.1   Transaction Agreement, dated September 12, 2023, by and among Smurfit WestRock, Smurfit Kappa, WestRock and Merger Sub (included as Annex A to the Registration Statement and incorporated herein by reference).
     
3.1   Amended Constitution of Smurfit WestRock
     
4.1   2015 Indenture, by and among SKA, the guarantors party thereto and Deutsche Trustee Company Limited, as Trustee, dated as of February 16, 2015
     
4.2   First Supplemental Indenture to 2015 Indenture, by and among SKA, the Smurfit Bond Debt New Guarantors and Deutsche Trustee Company Limited, as Trustee, dated as of July 5, 2024
     
4.3   2018 Indenture, by and among SKA, the guarantors party thereto and Deutsche Trustee Company Limited, as Trustee, dated as of June 28, 2018
     
4.4   First Supplemental Indenture to 2018 Indenture, by and among SKA, the guarantors party thereto and Deutsche Trustee Company Limited, as Trustee, dated as of February 4, 2019
     
4.5   Second Supplemental Indenture to 2018 Indenture, by and among SKA, the guarantors party thereto and Deutsche Trustee Company Limited, as Trustee, dated as of October 5, 2023
     
4.6   Third Supplemental Indenture to 2018 Indenture, by and among SKA, the Smurfit Bond Debt New Guarantors and Deutsche Trustee Company Limited, as Trustee, dated as of July 5, 2024
     
4.7   SKT DAC Indenture, by and among SKT DAC, the guarantors party thereto and The Bank of New York Mellon, as Trustee, dated as of November 15, 1995
     
4.8   First Supplemental Indenture to SKT DAC Indenture, by and among SKT DAC, the subsidiary guarantors party thereto, the Smurfit Bond Debt New Guarantors and The Bank of New York Mellon, as Trustee, dated as of July 5, 2024
     
4.9   2019 Indenture, by and among SKT, the guarantors party thereto and Deutsche Trustee Company Limited, as Trustee, dated as of September 16, 2019
     
4.10   First Supplemental Indenture to 2019 Indenture, by and among SKT, the guarantors party thereto and Deutsche Trustee Company Limited, as Trustee, dated as of October 5, 2023
     
4.11   Second Supplemental Indenture to 2019 Indenture, by and among SKT, the Smurfit Bond Debt New Guarantors and Deutsche Trustee Company Limited, as Trustee, dated as of July 5, 2024
     
4.12   2021 Indenture, by and among SKT, the guarantors party thereto and Deutsche Trustee Company Limited, as Trustee, dated as of September 22, 2021
     
4.13   First Supplemental Indenture to 2021 Indenture, by and among SKT, the guarantors party thereto and Deutsche Trustee Company Limited, as Trustee, dated as of October 5, 2023

 

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4.14   Second Supplemental Indenture to 2021 Indenture, by and among SKT, the Smurfit Bond Debt New Guarantors, and Deutsche Trustee Company Limited, as Trustee, dated as of July 5, 2024
     
4.15   2024 Indenture, by and among SKT, the guarantors party thereto and Deutsche Bank Trust Company Americas, as Trustee, dated as of April 3, 2024
     
4.16   First Supplemental Indenture to 2024 Indenture, by and among SKT, the Smurfit Bond Debt New Guarantors, and Deutsche Bank Trust Company Americas, as Trustee, dated as of July 5, 2024
     
4.17   Indenture, dated August 24, 2017, by and among WRKCo, MWV, WestRock RKT Company and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to WRKCo’s Current Report on Form 8-K (File No. 001-37484) filed with the Securities and Exchange Commission on August 24, 2017)
     
4.18   First Supplemental Indenture, dated August 24, 2017, by and among WRKCo, MWV, WestRock RKT Company and The Bank of New York Mellon Trust Company, N.A., as trustee, relating to the $500 million aggregate principal amount of 3.000% senior notes due 2024 and $500 million aggregate principal amount of 3.375% senior notes due 2027 of WestRock (incorporated by reference to Exhibit 4.2 to WRKCo’s Current Report on Form 8-K (File No. 001-37484) filed with the Securities and Exchange Commission on August 24, 2017)
     
4.19   Second Supplemental Indenture, dated as of March 6, 2018, by and among WRKCo, MWV, WestRock RKT Company and The Bank of New York Mellon Trust Company, N.A., as trustee, relating to the $600 million aggregate principal amount of 3.750% senior notes due 2025 and $600 million aggregate principal amount of 4.000% senior notes due 2028 of WestRock (incorporated by reference to Exhibit 4.1 to WRKCo’s Current Report on Form 8-K (File No. 001-37484) filed with the Securities and Exchange Commission on March 6, 2018)
     
4.20   Third Supplemental Indenture, dated as of November 2, 2018, to the Indenture dated as of August 24, 2017, among WRKCo, WestRock RKT Company, MWV and The Bank of New York Mellon, as Trustee (incorporated by reference to Exhibit 4.7 to WRKCo’s Current Report on Form 8-K (File No. 001-37484) filed with the Securities and Exchange Commission on November 5, 2018)
     
4.21   Fourth Supplemental Indenture, dated as of September 22, 2023, to the Indenture dated as of August 24, 2017, among WRKCo, WestRock, WestRock RKT Company, MWV and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.1(e) to WestRock’s Annual Report on Form 10-K (File No. 001-38736) filed with the Securities and Exchange Commission on November 17, 2023)
     
4.22   Fifth Supplemental Indenture, dated as of September 26, 2023, to the Indenture dated as of August 24, 2017, between WRKCo and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.1(f) to WestRock’s Annual Report on Form 10-K (File No. 001-38736) filed with the Securities and Exchange Commission on November 17, 2023)
     
4.23   Sixth Supplemental Indenture, dated as of July 5, 2024, to the Indenture dated as of August 24, 2017, among WRKCo, WestRock, MWV, WestRock RKT, LLC, the WestRock Bond Debt New Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee
     
4.24   Indenture, dated as of December 3, 2018, by and among WRKCo, WestRock, MWV, RKT, and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 of WestRock’s Current Report on Form 8-K filed on December 3, 2018)
     
4.25   First Supplemental Indenture, dated as of December 3, 2018, to the Indenture dated as of December 3, 2018, by and among WRKCo, WestRock, MWV, RKT and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.2 of WestRock’s Current Report on Form 8-K filed on December 3, 2018)
     
4.26   Second Supplemental Indenture, dated as of May 20, 2019, by and among WRKCo, WestRock, MWV, RKT and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.2 of WestRock’s Current Report on Form 8-K filed on May 20, 2019)

 

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4.27   Third Supplemental Indenture, dated as of June 3, 2020, to the Indenture dated as of December 3, 2018, by and among WRKCo, WestRock, MWV, RKT and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.2 of WestRock’s Current Report on Form 8-K filed on June 3, 2020)
     
4.28   Fourth Supplemental Indenture, dated as of September 26, 2023, to the Indenture dated as of December 3, 2018, by and among WRKCo, WestRock, MWV, RKT and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1(e) of WestRock’s Annual Report on Form 10-K filed on November 17, 2023)
     
4.29   Fifth Supplemental Indenture, dated as of July 5, 2024, to the Indenture dated as of December 3, 2018, among WRKCo, WestRock, MWV, WestRock RKT, LLC, the WestRock Bond Debt New Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee
     
4.30   Form of Indenture, dated as of March 1, 1983, between MWV (formerly Westvaco Corporation) and The Bank of New York (formerly Irving Trust Company), as Trustee (incorporated by reference to Exhibit 2 of Westvaco Corporation’s Registration Statement on Form 8-A filed on January 24, 1984)
     
4.31   First Supplemental Indenture, dated as of January 31, 2002, to the Indenture dated as of March 1, 1983, by and among MWV (as successor-in-interest to Westvaco Corporation and The Mead Corporation) and The Bank of New York, as Trustee (incorporated by reference to Exhibit 4.1 of MeadWestvaco Corporation’s Current Report on Form 8-K filed on February 1, 2002)
     
4.32   Second Supplemental Indenture, dated as of December 31, 2002, to the Indenture dated as of March 1, 1983, between MWV (as successor-in-interest to MeadWestvaco Corporation) and The Bank of New York, as Trustee (incorporated by reference to Exhibit 4.1 of MeadWestvaco Corporation’s Current Report on Form 8-K filed on January 7, 2003)
     
4.33   Third Supplemental Indenture, dated as of July 1, 2015, to the Indenture dated as of March 1, 1983, between MWV (as successor-in-interest to MeadWestvaco Corporation) and The Bank of New York Mellon, as Trustee (incorporated by reference to Exhibit 4.4 of WRKCo’s Current Report on Form 8-K filed on July 2, 2015)
     
4.34   Fourth Supplemental Indenture, dated as of November 2, 2018, to the Indenture dated as of March 1, 1983, between MWV and The Bank of New York Mellon, as Trustee (incorporated by reference to Exhibit 4.4 of WRKCo’s Current Report on Form 8-K filed on November 5, 2018)
     
4.35   Fifth Supplemental Indenture, dated as of July 5, 2024, to the Indenture dated as of March 1, 1983, among MWV, the WestRock Bond Debt New Guarantors and The Bank of New York Mellon, as trustee
     
4.36   Indenture, dated as of February 1, 1993, between MWV (as successor-in-interest to The Mead Corporation) and The First National Bank of Chicago, as Trustee (incorporated by reference to Exhibit 4.vv of MeadWestvaco Corporation’s Annual Report on Form 10-K for the period ended December 31, 2001)
     
4.37   First Supplemental Indenture, dated as of January 31, 2002, to the Indenture dated as of February 1, 1993, between The Mead Corporation, MWV (as successor-in-interest to MeadWestvaco Corporation and Westvaco Corporation) and Bank One Trust Company, NA, as Trustee (incorporated by reference to Exhibit 4.3 of MeadWestvaco Corporation’s Current Report on Form 8-K filed on February 1, 2002)
     
4.38   Second Supplemental Indenture, dated as of December 31, 2002, to the Indenture dated as of February 1, 1993, between MW Custom Papers, Inc. and Bank One Trust Company, NA, as Trustee (incorporated by reference to Exhibit 4.4 of MeadWestvaco Corporation’s Current Report on Form 8-K filed on January 7, 2003)
     
4.39   Third Supplemental Indenture, dated as of December 31, 2002, to the Indenture dated as of February 1, 1993, between MWV (as successor-in-interest to MeadWestvaco Corporation) and Bank One Trust Company, NA, as Trustee (incorporated by reference to Exhibit 4.5 of MeadWestvaco Corporation’s Current Report on Form 8-K filed on January 7, 2003)

 

15

 

 

4.40   Fourth Supplemental Indenture, dated as of July 1, 2015, to the Indenture dated as of February 1, 1993, between MWV (as successor-in-interest to MeadWestvaco Corporation) and The Bank of New York Mellon, as Trustee (incorporated by reference to Exhibit 4.5 of WRKCo’s Current Report on Form 8-K filed on July 2, 2015)
     
4.41   Fifth Supplemental Indenture, dated as of November 2, 2018, to the Indenture dated as of February 1, 1993, between MWV and The Bank of New York Mellon, as Trustee (incorporated by reference to Exhibit 4.5 of WRKCo’s Current Report on Form 8-K filed on November 5, 2018)
     
4.42   Sixth Supplemental Indenture, dated as of July 5, 2024, to the Indenture dated as of February 1, 1993, among MWV, the WestRock Bond Debt New Guarantors and The Bank of New York Mellon, as trustee
     
4.43   Indenture, dated as of April 2, 2002, by and among MWV (as successor-in-interest to MeadWestvaco Corporation, Westvaco Corporation and The Mead Corporation) and The Bank of New York, as Trustee (incorporated by reference to Exhibit 4(a) of MeadWestvaco Corporation’s Current Report on Form 8-K filed on April 2, 2002)
     
4.44   First Supplemental Indenture, dated as of July 1, 2015, to the Indenture dated as of April 2, 2002, between MWV (as successor-in-interest to MeadWestvaco Corporation) and The Bank of New York Mellon, as Trustee (incorporated by reference to Exhibit 4.6 of WRKCo’s Current Report on Form 8-K filed on July 2, 2015)
     
4.45   Second Supplemental Indenture, dated as of November 2, 2018, to the Indenture dated as of April 2, 2002, between MWV and The Bank of New York Mellon, as Trustee (incorporated by reference to Exhibit 4.6 of WRKCo’s Current Report on Form 8-K filed on November 5, 2018)
     
4.46   Third Supplemental Indenture, dated as of July 5, 2024, to the Indenture dated as of April 2, 2002, among MWV, the WestRock Bond Debt New Guarantors and The Bank of New York Mellon, as trustee
     
10.1   Form of Deed of Indemnification
     
10.2   Form of Indemnification Agreement
     
10.3   New Credit Agreement, dated as of June 28, 2024, by and among Smurfit Kappa, as guarantor, Smurfit Kappa Investments Limited, as obligor’s agent and guarantor, SKT, as borrower (with respect to the New Credit Agreement) and guarantor, and SKA, as borrower and guarantor, and certain other subsidiaries of Smurfit Kappa from time to time party thereto as guarantors, the lenders party thereto and Wells Fargo Bank, National Association, as agent
     
10.4   Accession Letter, dated as of July 2, 2024, between Smurfit US Holdings and SKI
     
10.5   Accession Letter, dated as of July 2, 2024, between WestRock and SKI
     
10.6   Accession Letter, dated as of July 2, 2024, between WRKCo and SKI
     
10.7   Accession Letter, dated as of July 2, 2024, between MWV and SKI
     
10.8   Accession Letter, dated as of July 2, 2024, between WestRock RKT, LLC and SKI
     
10.9   Accession Letter, dated as of July 2, 2024, between Smurfit WestRock and SKI
     
10.10   Original CoBank Credit Agreement, dated as of July 7, 2022, by and among WestRock, as a guarantor, WestRock Southeast, LLC, as the borrower, the subsidiaries of WestRock from time to time party thereto, as guarantors, the lenders from time to time party thereto and CoBank, ACB, as administrative agent (incorporated by reference to Exhibit 10.2 to WestRock’s Current Report on Form 8-K filed on July 11, 2022)
     
10.11   First CoBank Amendment, dated as of September 27, 2023, by and among WestRock and certain of its subsidiaries (incorporated by reference to Exhibit 10.18(b) to WestRock’s Annual Report on Form 10-K (File No. 001-38736) filed with the Securities and Exchange Commission on November 17, 2023)

 

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10.12   Second CoBank Amendment, dated as of July 1, 2024, by and among WestRock, the CoBank Credit Facility Borrower and certain other subsidiaries of WestRock from time to time party thereto, Smurfit Westrock, Smurfit Kappa and certain subsidiaries of Smurfit Kappa, as guarantors, the lenders from time to time party thereto and CoBank, ACB, as administrative agent
     
10.13   Form of Amended and Restated Dealer Agreement, dated as of July 5, 2024, among WRKCo, the New Guarantors and the Dealer party thereto
     
10.14   Smurfit WestRock 2024 Long-Term Incentive Plan
     
10.15   Smurfit WestRock Annual Short-Term Incentive Plan
     
10.16   Smurfit WestRock Executive Severance Plan
     
10.17   Service Contract between Smurfit Kappa Services Limited and Ken Bowles, dated July 5, 2024.
     
10.18   Service Contract between Smurfit Kappa Services Limited and Anthony Smurfit, dated July 5, 2024
     
10.19   Service Contract between Smurfit Kappa Italia S.p.A. and Saverio Mayer, dated July 5, 2024
     
10.20   Offer Letter between Smurfit WestRock and Laurent Sellier, dated July 5, 2024
     
10.21   Offer Letter between Smurfit WestRock and Jairo Lorenzatto, dated July 5, 2024
     
99.1   Scheme Effectiveness Announcement, dated July 5, 2024
     
99.2   Closing and NYSE Listing Announcement and Press Release, dated July 8, 2024
     
99.3   LSE Announcement, dated July 8, 2024
     
99.4   Delisting Announcement, dated July 8, 2024
     
104   Cover page interactive data file (formatted as inline XBRL)

 

Annexes, schedules and/or exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. Smurfit WestRock agrees to furnish supplementally a copy of any omitted attachment to the SEC on a confidential basis upon request.

 

17

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

SMURFIT WESTROCK PLC
  
 /s/ Ken Bowles
 Name:Ken Bowles
 Title:Executive Vice President and Group
  Chief Financial Officer
   
   
 Date: July 8, 2024

 

18

 

Exhibit 3.1

 

COMPANIES ACT 2014

 

PUBLIC COMPANY LIMITED BY SHARES

 

MEMORANDUM OF ASSOCIATION

 

OF

 

SMURFIT WESTROCK PUBLIC LIMITED COMPANY

 

(as altered by Special Resolution effective 5 July 2024)

 

1The name of the Company is Smurfit Westrock Public Limited Company.

 

2The Company is a public limited company, registered under Part 17 of the Companies Act 2014 (the “Act”).

 

3The objects for which the Company is established are:

 

3.1to carry on the business of an investment company and / or of a holding company and for such purpose to acquire and hold, either in the name of the Company or in the name of any nominee or agent, any shares, stocks, bonds, debentures or debenture stock (whether perpetual or not), loan stock, notes, obligations or other securities or assets of any kind, whether corporeal or incorporeal, (in this Clause referred to as “Securities”) issued or guaranteed by any company and similarly to acquire and hold as aforesaid any Securities issued or guaranteed by any government, state, ruler, commissioners, or other public body or authority (and whether sovereign, dependent, national, regional, local or municipal), and to acquire any Securities by original subscription, contract, tender, purchase, exchange, underwriting, participation in syndicates or otherwise and whether or not fully paid up, and to subscribe for the same subject to such terms and conditions (if any) as may be thought fit and to exercise and enforce all rights and powers conferred by or incident to the ownership of any Securities including, without limitation, all such powers of veto or control as may be conferred by virtue of the holding by the Company of some special proportion of the issued or nominal amount thereof;

 

3.2to undertake the management and control and supervision of the business or operations of any person or company and in particular, without limitation, to plan and effectively carry out the organisation of and to initiate and to carry out schemes for the promotion and expansion of any such business, to engage in research into all problems relating to investment, property, financial, portfolio, industrial and business management, to carry out all or any work of a clerical, secretarial, managerial or other like nature, to provide staff and services, to prepare and deal with accounts, returns, forms and all documents required to be prepared and furnished in relation to any such bodies, to direct and carry out all advertising and publicity for any such business, and generally to do all acts and things (including the receipt and payment of money) necessary to be done for the supervision of the day to day running of any such business and to enter into contracts with any such company for the carrying out of the works or provisions of any of the services which the Company is authorised to perform or provide;

 

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3.3to promote, develop and secure the interests of the group of companies which for the time being shall consist of the Company and any company which for the time being is an Associated Company and to so do in such manner as the Company may think fit and in particular, without limitation, by giving any guarantee, indemnity, support or security, in respect of or, directly or indirectly, assuming any liability or obligation of, any Associated Company, by making any payment or loan or disposition of any property, assets or rights to or for the benefit of any Associated Company or acquiring any property, assets or rights from any Associated Company notwithstanding that the Company may not receive in respect of any such transaction full or adequate consideration therefor or any consideration whatsoever or may pay consideration which would or might be in excess of an arms’ length consideration;

 

3.4to purchase (including, without limitation, by the issue of Securities of the Company) or otherwise acquire and carry on all or any part of the business or property and to undertake any liabilities of any person or company possessed of property suitable for any of the purposes of the Company or carrying on or proposing to carry on any business which the Company is authorised to carry on or which can be carried on in connection with the same or which is capable of being conducted so as, directly or indirectly, to benefit the Company;

 

3.5to purchase, take on lease, on licence, in exchange, upon option or otherwise acquire and hold any lands, buildings, property (whether leasehold or freehold) or any rights or interests therein or in respect thereof or in any forests, crops or growing produce thereon or any minerals therein or thereunder or any rights to pass thereon or any rights or interests in or over the sea, the sea bed, the sea shore, the sky or in space, or any interests connected or associated with any of the foregoing and to exercise any rights in respect thereof and to develop, improve, alter or manage the same or any part thereof in any way (including, without limitation, construction, demolition, landscaping, planting, draining and improving) and to farm, harvest or extract anything from the same;

 

3.6to purchase, take on lease, on licence, in exchange, upon option, on hire or hire-purchase, or otherwise acquire and hold any personal property, rights or privileges which the Company may think necessary or convenient for the purposes of its business or which may seem to the Company calculated, directly or indirectly, to benefit the Company including, without limitation, the subscription, taking or otherwise acquiring of Securities in any company;

 

3.7to apply for, purchase or otherwise acquire and protect and renew any patents, patent rights, inventions, secret processes, recipes, receipts, prescriptions, formulae, trademarks, trade names, designs, licences, concessions and the like, conferring any exclusive or non-exclusive or limited right to their use, or any secret or other information as to any invention or process which may seem capable of being used for any of the purposes of the Company or the acquisition of which may seem calculated, directly or indirectly, to benefit the Company and to use, exercise, develop or grant licences in respect of, or otherwise turn to account, the property, rights or information so acquired and to expend money in experimenting upon, testing or improving any such patents, inventions or rights;

 

3.8to establish or promote or concur in establishing or promoting any company or companies for the purpose of acquiring all or any of the property, rights and liabilities of the Company or for any other purpose which may seem, directly or indirectly, calculated to benefit the Company or to place or guarantee the placing of, underwrite, subscribe for or otherwise acquire all or any part of the Securities of any such other company;

 

3.9to invest and to deal with the moneys of the Company not immediately required in any manner;

 

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3.10to amalgamate, enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint venture, reciprocal concession, mutual assistance or otherwise with any person or company carrying on or engaged in or about to carry on or engage in, any business or transaction which the Company is authorised to carry on or engage in or which can be carried on in conjunction therewith or which is capable of being conducted so as, directly or indirectly, to benefit the Company;

 

3.11to constitute any trusts with a view to the issue of preferred and deferred or other special stocks or securities based on or representing any shares, stocks and other assets specifically appropriated for the purpose of any such trust and to settle and regulate and if thought fit to undertake and execute any such trusts and to issue dispose of or hold any such preferred, deferred or other special stocks or securities;

 

3.12to give any guarantee in relation to the payment of any debentures, debenture stock, bonds, obligations or securities and to guarantee the payment of interest thereon or of dividends on any stocks or shares of any company;

 

3.13to sell, lease, mortgage or otherwise dispose of the business, property, assets or undertaking of the Company or any part thereof for such consideration as the Company may think fit and to improve, manage, develop, exchange, licence, turn to account or otherwise deal with, all or any of the business, property, assets and undertaking of the Company and in particular, without limitation, to accept Securities of any other company in payment or part payment of the consideration payable to the Company in respect of any transaction referred to in this paragraph;

 

3.14to promote, develop and secure the interests of the group of companies which for the time being shall consist of the Company and any company which for the time being is an Associated Company and to so do in such manner as the Company may think fit and in particular, without limitation, by giving any guarantee, indemnity, support or security, in respect of or, directly or indirectly, assuming any liability or obligation of, any Associated Company, by making any payment or loan or disposition of any property, assets or rights to or for the benefit of any Associated Company or releasing any Associated Company from any liability or responsibility of any nature owing by it to the Company (including, without limitation, any debt or other amount owing to the Company by such Associated Company) or acquiring any property, assets or rights from any Associated Company notwithstanding (in any such case) that the Company may not receive in respect of any such transaction full or adequate consideration therefor or any consideration whatsoever or may pay consideration which would or might be in excess of an arms’ length consideration;

 

3.15to establish and maintain or procure the establishment and maintenance of or to adhere to any contributory or non-contributory pension or superannuation funds, schemes or plans for the benefit of, and give or procure the giving of donations, gratuities, pensions, allowances or emoluments to any persons who are or were at any time in the employment or service of the Company or of any Associated Company or who are or were at any time Directors or officers of the Company or of any Associated Company and the spouses, families and dependents of any such persons and also establish and subsidise and subscribe to any associations, institutions, clubs or funds calculated to be for the benefit of the Company and to make payments to or towards the insurance of any such person as aforesaid either alone or in conjunction with any other company and further to do any acts or things or make any arrangements or provisions necessary or desirable to enable all or any of such persons as aforesaid to become shareholders in the Company or otherwise to participate in the profits of the Company or any Associated Company;

 

3

 

 

3.16to settle moneys or other assets on the trustee or trustees of any trust, foundation, settlement or institution set up for charitable or benevolent purposes or for any public, general or useful object or to lend money or provide services (with or without interest or charge) to any such trustee or trustees and to pay, subscribe, lend or contribute assets or services of the Company (with or without interest or charge) or give any guarantee or indemnity in respect of any trust, foundation, settlement or institution set up or operating for any such purpose or object or in respect of any exhibition or for any charitable, benevolent, public, general or useful object;

 

3.17to borrow or raise money in such manner as the Company shall think fit and in particular, without limitation, by the issue of Securities of the Company (other than shares or stock) and to secure the repayment of any moneys borrowed or raised or any other obligation, debt or liability of any nature of the Company by way of mortgage, charge, lien or other security interest over or in respect of all or any of the Company’s undertaking, property or assets (both present and future and including its uncalled capital) upon such terms as to priority and otherwise as the Company shall think fit;

 

3.18to carry on a treasury business including the procurement of short, medium or long term finance or unlimited duration, the investment in property of whatever nature including real and personal property and wherever situated and the provision of financial and investment services and facilities, financial and investment management, advice, assistance, information and agency services in any currency whatsoever and to carry out financing and lending of every description to such persons or companies upon such terms as may seem expedient;

 

3.19to purchase, acquire by any means, hold and create, enter into any arrangement relating to, deal and participate in, underwrite and sell or dispose of by any means, securities, financial and swap instruments and rights of all kinds including without limitation foreign currencies, shares, stocks, gilts, equities, debentures, debenture stock, bonds, notes, commercial paper, risk management instruments, swaps, credit default swaps or hedges, interest rate hedges, foreign currency hedges, floors, collars, options and such other financial and swap instruments and rights and securities as are similar to, or are derivatives of, any of the foregoing;

 

3.20to facilitate and encourage the creation, issue or conversion of and to offer for public subscription debentures, debenture stocks, bonds, obligations, shares, stocks and securities and to act as trustees in connection with any such securities and to take part in the conversion of business concerns and undertakings into companies;

 

3.21as an object of the Company and as a pursuit in itself or otherwise, and whether for the purpose of making a profit or avoiding a loss or for any other purpose whatsoever, to engage in currency and interest rate transactions, credit default swaps, hedges or other transactions and any other financial or other transaction of whatever nature, including any transaction for the purpose of, or capable of being for the purposes of, avoiding, reducing, minimising, hedging against or otherwise managing the risk of any loss, cost, expense or liability arising, or which may arise, directly or indirectly, from a change or changes in any interest rate or currency exchange rate or in the price or value of any property, asset, commodity, index or liability or the credit standing or any person or entity or from any other risk or factor affecting the Company’s undertaking and business, including but not limited to dealings, whether involving purchases, sales or otherwise in any credit-default contracts, currency, spot and forward exchange rate contracts, forward rate agreements caps, floors and collars, futures, options, swaps, and any other credit default currency interest rate and other hedging arrangements and such other instruments as are similar to, or derivatives of any of the foregoing;

 

4

 

 

3.22to lend and advance money or give credit to any person or company and upon such terms as may seem expedient (whether with or without security or any interest or other charge);

 

3.23to give any guarantee or indemnity in respect of or otherwise support or secure in any manner (whether by personal covenant or by mortgaging, charging or granting any lien or other security interest over or in respect of all or any part of the Company’s undertaking, property or assets, both present and future and including its uncalled capital, or by both such methods) any obligation, debt, liability of any nature of any person or company upon such terms as to priority and otherwise as the Company shall think fit;

 

3.24to pay for any rights or property acquired by the Company and to remunerate any person or company whether by way of cash payment or by the allotment of Securities of the Company credited as paid up in full or in part or otherwise;

 

3.25upon any issue of Securities of the Company, to employ brokers, commission agents and underwriters and to provide for the remuneration of such persons for their services;

 

3.26to draw, make, accept, indorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants, debentures and other negotiable or transferable instruments;

 

3.27to enter into any arrangements with any governments or authorities, supreme, municipal, local or otherwise, or any person or company that may seem conducive to the Company’s objects or any of them and to obtain from any such government, authority, person or company any rights, privileges, charters, licenses and concessions which the Company may think it desirable to obtain and to carry out, exercise and comply therewith;

 

3.28to undertake and execute any trusts the undertaking whereof may seem desirable and either gratuitously or otherwise;

 

3.29to adopt such means of making known the products, investments or services of the Company or any Associated Company as may seem expedient and in particular, without limitation, by advertising in the press or radio or television by circulars, by purchase and exhibition of works of art or interest, by publication of books and periodicals and by granting prizes, rewards, scholarships and donations and by sponsoring sports events, theatrical and cinematic performances and exhibitions of all descriptions;

 

3.30to apply for, promote and obtain any Act of the Oireachtas or any charter, privilege, licence or authorisation of any government, state or municipality or any ministerial or departmental licence or order for enabling the Company to carry any of its objects into effect or for effecting any modification of the Company’s constitution or for any other purpose which may seem expedient and to oppose any proceedings or applications which may seem calculated, directly or indirectly, to prejudice the interests of the Company or any Associated Company;

 

3.31to promote freedom of contract and to resist, insure against, counteract and discourage interference therewith, to join any lawful federation, union or association or to do any lawful act or thing with a view to preventing or resisting, directly or indirectly, any interruption of or interference with the trade or business of the Company or any other trade or business or providing or safeguarding against the same or resisting or opposing any strike, movement or organisation which may be thought detrimental to the interests of the Company or any Associated Company or its or their employees and to subscribe to any association or fund for any such purposes;

 

5

 

 

3.32to undertake and carry on any other trade or business (whether manufacturing or otherwise) which may seem to the Company capable of being conveniently carried on by the Company or which is calculated, directly or indirectly, to enhance the value of or render profitable, any of the Company’s businesses, rights or property;

 

3.33to do all or any of the matters hereby authorised in any part of the World and with or in respect of persons or companies resident, domiciled, incorporated, registered or carrying on business in any part of the World and either as principal, agent, factor, trustee or otherwise and by or through agents, factors, trustees or otherwise and either alone or in conjunction with others;

 

3.34to distribute in specie or otherwise as may be resolved any of the assets of the Company among the members; and

 

3.35to do all such other things as may appear to the Company to be incidental or conducive to the attainment of the above objects or any of them,

 

provided that:

 

(i)the objects set out in any paragraph of this Clause shall not be restrictively construed but the widest interpretation shall be given thereto and they shall not, except where the context expressly so requires, be in any way limited to or restricted by reference to or inference from any other object or objects set out in such paragraph or from the terms of any other paragraph or by the name of the Company; none of such paragraphs or the object or objects therein specified shall be deemed subsidiary or ancillary to the objects mentioned in any other paragraph, but the Company shall have full power to exercise all or any of the powers and to achieve and endeavour to achieve all or any of the objects conferred by and provided in any one or more of said paragraphs;

 

(ii)the word “company” in this Clause, except where used in reference to the Company, shall be deemed to include any firm, partnership, association or other body of persons, whether incorporated or not incorporated, and whether resident, domiciled, incorporated, registered, or carrying on business in the State or elsewhere; and

 

(iii)the expression “Associated Company” in this Clause, shall be deemed to mean any company which for the time being is a subsidiary or holding company (which expressions in this proviso shall bear the meanings respectively ascribed thereto by Sections 7 and 8 of the Act) of the Company, is a subsidiary of a holding company of the Company or is a company in which the Company or any of such companies as aforesaid shall for the time being hold shares entitling the holder thereof to exercise at least one-fifth of the votes at any general meeting of such company (not being voting rights which arise only in specified circumstances).

 

4The liability of the members is limited.

 

5The authorised share capital of the Company is US$10,000,000 and €25,000, divided into 9,500,000,000 ordinary shares of US$0.001 each, 500,000,000 preference shares of US$0.001 each and 25,000 Euro deferred shares of €1.00 each.

 

6The shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended articles of association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s articles of association for the time being.

 

6

 

 

We, the several persons whose names and addresses are subscribed, wish to be formed into a company in pursuance of this memorandum of association and we agree to take the number of shares in the capital of the company set opposite our respective names.

 

Names, addresses and descriptions of subscribers Number of shares taken by each subscriber

 

Total:

 

Dated the day of

 

Witness to the above signatures :

 

7

 

 

COMPANIES ACT 2014

 

PUBLIC COMPANY LIMITED BY SHARES

 

ARTICLES OF ASSOCIATION

 

OF

 

SMURFIT WESTROCK PUBLIC LIMITED COMPANY

 

(as adopted by special resolution effective 5 July 2024)

 

MATHESON LLP

70 Sir John Rogerson’s Quay

Dublin 2

Ireland

D02 R296

T: +353 1 232 2000

 

8

 

 

Contents

 

PART I — PRELIMINARY 12
1 Interpretation 12
     
PART II — SHARE CAPITAL AND RIGHTS 16
2 Share Capital 16
3 Share Rights 16
4 Rights of Shares on Issue 18
5 Redeemable Shares 18
6 Allotment of Shares 18
7 Section 1023 Authority 18
8 Variation of Rights 19
9 Purchase of Own Shares 20
10 Reissue of Treasury Shares 20
11 Trusts Not Recognised 21
12 Disclosure of Interests 21
13 Restriction of Rights 22
14 Payment of Commission 24
     
PART III — SHARE CERTIFICATES 24
15 Issue of Certificates 24
16 Balance and Exchange Certificates 25
17 Replacement of Certificates 25
     
PART IV — LIEN ON SHARES 25
18 Extent of Lien 25
19 Power of Sale 25
20 Power to Effect Transfer 25
21 Proceeds of Sale 26
     
PART V — CALLS ON SHARES AND FORFEITURE 26
22 Making of Calls 26
23 Time of Call 26
24 Liability of Joint Holders 26
25 Interest on Calls 26
26 Instalments Treated as Calls 27
27 Power to Differentiate 27
28 Notice Requiring Payment 27
29 Forfeiture 27
30 Power of Disposal 27
31 Effect of Forfeiture or Surrender 27
32 Statutory Declaration 28
     
PART VI — TRANSFER OF SHARES 28
33 Transfer and Evidence of Title 28
34 Status of Holder 29
35 Refusal to Register Transfers 29
36 Closing of Transfer Books 30
37 Absence of Registration Fees 30
38 Retention of Transfer Instruments 30
39 Renunciation of Allotment 30
     
PART VII — TRANSMISSION OF SHARES 30
40 Death of a Member 30
41 Transmission on Death or Bankruptcy 30
42 Rights before Registration 31
     
PART VIII — ALTERATION OF SHARE CAPITAL 31
43 Increase of Capital 31
44 Consolidation, Sub-Division and Cancellation of Capital 31

 

9

 

 

45 Fractions on Consolidation 31
46 Reduction of Capital 32
   
PART IX — GENERAL MEETINGS 32
47 Annual General Meetings 32
48 Extraordinary General Meetings 32
49 Convening General Meetings 32
50 Notice of General Meetings 32
51 Change in Venue or Time of Meeting 34
     
PART X — PROCEEDINGS AT GENERAL MEETINGS 34
52 Quorum for General Meetings 34
53 Order of Business 35
54 Advance Notice of Member Business and Nominations 36
55 Chairperson of General Meetings 42
56 Director’s and Auditors’ Right to Attend General Meetings 43
57 Adjournment of General Meetings 43
58 Amendments to Resolutions 43
59 Determination of Resolutions 44
60 Taking of a Poll 44
61 Record Dates and Votes of Members 44
62 Voting by Joint Holders 45
63 Voting by Incapacitated Holders 45
64 Default in Payment of Calls 45
65 Time for Objection to Voting 45
66 Appointment of Proxies 45
67 Bodies corporate acting by representatives at meetings 46
68 Deposit of Proxy 46
69 Rights of Proxy 48
70 Effect of Proxy Instruments 48
71 Effect of Revocation of Proxy or Authorisation 48
72 Class Meetings 48
     
PART XI — DIRECTORS 49
73 Numbers of Directors 49
74 Shareholding Qualification for Directors 49
75 Remuneration of Directors 49
76 Expenses of Directors and Use of Company Property 49
77 Alternate Directors 49
     
PART XII — POWERS OF DIRECTORS 50
78 Directors Powers 50
79 Power to Delegate 50
80 Local Management 51
81 Appointment of Attorneys 51
82 Borrowing Powers 51
     
PART XIII — APPOINTMENT, NOMINATION, RETIREMENT AND DISQUALIFICATION OF DIRECTORS 51
83 Retirement by Rotation 51
84 Procedure if Insufficient Directors Re-elected 52
85 Provisions for General Meeting Convened Under Article 84 52
86 Deemed Re-appointment 53
87 Eligibility for Appointment 53
88 Appointment & Nomination of Directors 53
89 Disqualification & Removal of Directors 53
     
PART XIV — DIRECTORS’ OFFICES AND INTERESTS 54
90 Executive Offices 54
91 Directors’ Interests 55
92 Restriction on Director’s Voting 56
93 Entitlement to Grant Pensions and Purchase Insurance 57

 

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PART XV — PROCEEDINGS OF DIRECTORS 58
94 Regulation and Convening of Directors’ Meetings 58
95 Quorum for Directors’ Meetings 58
96 Voting at Directors’ Meetings 59
97 Telecommunication Meetings 59
98 Chairperson of Meetings of Directors 59
99 Validity of Acts of Directors 60
100 Directors’ Resolutions or other Documents in Writing 60
     
PART XVI — THE SECRETARY 60
101 Appointment of Secretary 60
102 Assistant Secretary 60
     
PART XVII — SEALS OF THE COMPANY 60
103 Use of Seals 60
104 Signature of Sealed Instruments 60
105 Seal for Use Abroad 61
     
PART XVIII — DIVIDENDS AND RESERVES 61
106 Declaration of Dividends 61
107 Interim and Fixed Dividends 61
108 Reserves 62
109 Scrip Dividends 62
110 Apportionment of Dividends 64
111 Deductions from Dividends 64
112 Dividends in Specie 64
113 Payment of Dividends and Other Monies 65
114 Dividends Not to Bear Interest 66
115 Payment to Holders on a Particular Date 66
116 Unclaimed Dividends 66
     
PART XIX — POWER TO CAPITALISE 66
117 Capitalisation of Non-Distributable Profits and Reserves 66
118 Implementation of Capitalisation Issues 67
     
PART XX — NOTICES 68
119 Notices in Writing 68
120 Service of Notices 68
121 Use of Electronic Communication 69
122 Service on Joint Holders 70
123 Service on Transfer or Transmission of Shares 71
124 Signature to Notices 71
125 Deemed Receipt of Notices 71
     
PART XXI — WINDING UP 71
126 Distribution on Winding Up 71
127 Distribution in Specie 71
     
PART XXII — MISCELLANEOUS 72
128 Inspection and Confidentiality 72
129 Destruction of Records 72
130 Untraced Shareholders 72
131 Indemnity 73
132 Arrangements in respect of the listing of the Company’s Ordinary Shares in the US 75
133 Shareholder rights plan 77

 

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COMPANIES ACT 2014

 

PUBLIC COMPANY LIMITED BY SHARES

 

ARTICLES OF ASSOCIATION

 

OF

 

SMURFIT WESTROCK PUBLIC LIMITED COMPANY

 

(as adopted by special resolution effective 5 July 2024)

 

PART I — PRELIMINARY

 

1Interpretation

 

1.1The following regulations shall apply to the Company and shall constitute the Articles of the Company for the purposes of the Act. Without prejudice to Section 1007(4) of the Act and save as expressly provided in these Articles, where a provision of these Articles covers substantially the same subject matter as any optional provision of the Act, any such optional provision of the Act shall be deemed not to apply to the Company and, for the avoidance of doubt, these Articles shall be deemed to have effect and prevail over the terms of such optional provisions of the Act (and the expression “optional provision” shall take its meaning from Section 1007(2) of the Act).

 

1.2In these Articles the following expressions shall have the following meanings:

 

“Act”, the Companies Act 2014 and all acts of the Oireachtas and statutory instruments which are to be read as one with, or construed or read together as one with the Companies Act 2014 and every statutory modification, amendment, extension or re-enactment thereof for the time being in force (or, where the context so admits or requires, any one or more of such acts;

 

“advanced electronic signature”, the meaning given to that expression in Regulation (EU) No.  910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC ;

 

“Articles”, these Articles of Association as from time to time altered by resolution of the Company;

 

“Auditors”, the statutory auditors for the time being of the Company;

 

“Belgian Law Rights”, the fungible co-ownership rights governed by Belgian law over a pool of book-entry interests in securities of the same issue which EB Participants hold;

 

“Business Day”, any day (other than a Saturday or Sunday) on which banks are generally open for normal business in Dublin, London and New York;

 

“CDIs”, CREST Depository Interests;

 

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“Clear Days”, in relation to the period of a notice, that period excluding the day on which the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;

 

“close of business”, 5:00 p.m.  local time in Dublin, Ireland;

 

“Company”, Smurfit Westrock Public Limited Company;

 

“Court”, the High Court of Ireland;

 

“CREST” or “CREST System”, the securities settlement system operated by Euroclear UK & Ireland Limited and constituting, in respect of CDIs, a relevant system for the purposes of the UK CREST Regulations;

 

“CREST Participants”, the meaning given to that term in Article 132;

 

“CTCNA”, Computershare Trust Company N.A.;

 

“Deferred Shares”, the Deferred Shares as defined in Article 2;

 

“Depositary Interest” or “DI”, the meaning given to that term in Article 132;

 

“DI Custodian”, the meaning given to that term in Article 132;

 

“DI Deed”, the deed poll made or to be made by the DI Depositary constituting the Company’s Depositary Interests;

 

“DI Depositary”, the meaning given to that term in Article 132;

 

“Directors”, the Directors, for the time being, of the Company or any of them acting as the board of Directors of the Company;

 

“DTC”, The Depositary Trust Company;

 

“EB Participants”, participants in Euroclear Bank, each of which has entered into an agreement to participate in the Euroclear System subject to the terms and conditions issued by Euroclear Bank from time to time;

 

“Effective Time”, the meaning given to that term in Article 132;

 

“electronic communication”, the meaning given to that expression in the Electronic Commerce Act 2000;

 

“electronic general meeting”, a general meeting hosted on an electronic platform, whether that general meeting is physically hosted at a specific location simultaneously or not;

 

“electronic platform”, means any form of electronic platform and includes, without limitation, website addresses, application technology and conference call systems;

 

“electronic signature”, the meaning given to that expression in Regulation (EU) No.  910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC;

 

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“Euro” or “€”, the official currency of the Eurozone;

 

“Euroclear Bank”, Euroclear Bank SA/NV, a company incorporated in Belgium;

 

“Euroclear Nominees”, Euroclear Nominees Limited, a wholly owned subsidiary of Euroclear Bank, established under the laws of England and Wales with registration number 02369969;

 

“Euroclear Share(s)”, any Ordinary Share(s) in respect of which Euroclear Nominees is the Holder on the US Listing Record Date;

 

“Euroclear System”, the securities settlement system operated by Euroclear Bank and governed by Belgian law;

 

“Exchange Act”, the Securities Exchange Act of 1934, as amended;

 

“Holder”, in relation to any share in the capital of the Company, the member whose name is entered in the Register as the holder of the share;

 

“Interest”, means any interest whatsoever in shares (of any size) which would be taken into account in deciding whatever a notification to the Company would be required under Chapter 4 Part 17 of the Act and “interested” shall be construed accordingly;

 

“London Stock Exchange”, London Stock Exchange plc;

 

“Office”, the registered office, for the time being, of the Company;

 

“Ordinary Shares”, the Ordinary Shares as defined in Article 2;

 

“Preference Shares”, the Preference Shares as defined in Article 2;

 

“Public Announcement”, any method (or combination of methods) of disclosure that is reasonably designed to provide broad, non-exclusionary distribution of the information to the public or the furnishing or filing of any document publicly filed by the Company with the U.S. Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

 

“qualified certificate”, the meaning given to that expression in the Electronic Commerce Act 2000;

 

“Redeemable Shares”, the redeemable shares as defined by section 64 of the Act;

 

“Register”, the register of members of the Company to be kept as required by the Act;

 

“Restricted Share”, any Ordinary Share which, by reason of the application of US federal securities laws, the rules and regulations of DTC or any other applicable law, is either incapable of, or ineligible for, admission to DTC for any period of time;

 

“Restricted Shareholder”, any Holder of a Restricted Share;

 

“Revenue”, the Revenue Commissioners of Ireland;

 

“RIS”, any regulatory information service provided by or approved for use by any of the regulated market(s) on which the Company’s securities are admitted to trading;

 

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“Seals”, the common seal of the Company or (where relevant) the official securities seal kept by the Company pursuant to the Act;

 

“Secretary”, any person appointed to perform the duties of the Secretary of the Company, including an assistant or deputy secretary;

 

“shares”, any shares in the capital of the Company, except where the provisions of these Articles preclude such an interpretation;

 

“State”, Ireland and the word “Irish” shall be construed accordingly;

 

“Stock Exchange”, the New York Stock Exchange and / or the London Stock Exchange or such body or bodies as may succeed to their respective functions in either or both of the US and / or the United Kingdom;

 

“Treasury Share”, the meaning given to such expression by Section 106 of the Act;

 

“UK CREST Regulations”, the Uncertificated Securities Regulations 2001 of the United Kingdom;

 

“United Kingdom”, the United Kingdom of Great Britain and Northern Ireland;

 

“US”, the United States of America, its territories and possessions, any State of the United States of America and the District of Columbia;

 

“USD” or “$”, the lawful currency of the US;

 

“US Listing”, the meaning given to that term in Article 132; and

 

“US Listing Record Date”, a date and time, to be determined by the Directors, by reference to which the treatment of the Ordinary Shares subject to the provisions of Article 132 at the Effective Time will be determined.

 

1.3Expressions in these Articles referring to writing shall, unless the contrary intention appears, be construed as including references to printing, lithography, photography, writing in electronic form and any other modes of representing or reproducing words in a visible form, provided however that where it constitutes writing in electronic form sent to the Company, the Company has agreed to its receipt in such form. The expression “executed” shall include any mode of execution whether under seal or under hand.

 

1.4Unless specifically defined herein or the context otherwise requires, words and expressions contained in these Articles shall bear the same meanings as in the Act but excluding any statutory modification thereof not in force when these Articles become binding on the Company.

 

1.5References to any Article are references to an Article contained in these Articles and any reference in an Article to a paragraph or sub-paragraph shall be a reference to a paragraph or sub-paragraph of the Article in which the references is contained unless it appears from the context that a reference to some other provisions is intended.

 

1.6The headings and captions included in these Articles are inserted for convenience of reference only and shall not be considered a part of or affect the construction or interpretation of these Articles.

 

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1.7References in these Articles to any enactment or any section or provision thereof shall mean such enactment, section or provision as the same may be amended and may be from time to time and for the time being in force.

 

1.8In these Articles, the masculine gender shall include the feminine and neuter, and vice versa, and the singular number shall include the plural, and vice versa, and words importing persons shall include firms and companies.

 

1.9References in these Articles to an uncertificated share, or to a share being held in uncertificated form, are references to that share being an uncertificated unit of a security, and references to a certificated share, or to a share being in certificated form, are references to that share being a unit of a security which is not an uncertificated unit of a security.

 

1.10Subject to the Act, where for any purpose an ordinary resolution of the Company is required, a special resolution shall also be effective.

 

PART II — SHARE CAPITAL AND RIGHTS

 

2Share Capital

 

The authorised share capital of the Company is US$10,000,000 and €25,000, divided into 9,500,000,000 ordinary shares of US$0.001 each (the “Ordinary Shares”), 500,000,000 preference shares of US$0.001 each (the “Preference Shares”) and 25,000 Euro deferred shares of €1.00 each (the “Deferred Shares”).

 

3Share Rights

 

3.1The following rights shall attach to the Ordinary Shares:

 

3.1.1Subject to any restrictions that may be imposed in accordance with these Articles, at a general meeting of the Company, every Holder of Ordinary Shares who is present in person or by a proxy or (being a body corporate) by proxy or by a representative shall have one vote for every Ordinary Share of which he is the Holder.

 

3.1.2Subject to any restrictions that may be imposed in accordance with these Articles, sums legally available to be distributed by the Company in or in respect of any financial period may (to the extent so resolved or recommended by the Directors) be distributed amongst the Holders of Ordinary Shares in proportion to the numbers of Ordinary Shares then held by them.

 

3.1.3The right, in the event of the Company’s winding up, to participate pro rata in the total assets of the Company.

 

The rights attaching to the Ordinary Shares may be subject to the terms of issue of any series or class of Preference Share allotted by the Directors from time to time in accordance with Article 3.2.

 

3.2The Directors are empowered, subject to the Act, to cause the Preference Shares to be issued from time to time as shares of one or more class or series of preferred shares, with the sanction of a resolution of the Directors, on terms:

 

3.2.1that the Directors can fix the distinctive designation of such class or series and the number of shares which shall constitute such class or series, which number may be increased (except as otherwise provided by the Directors in creating such series) or decreased (but not below the number of shares thereof then in issue) from time to time by resolution of the Directors;

 

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3.2.2that they are to be redeemed (the manner and terms of redemption in all cases to be set by the Directors) on the happening of a specified event or on a given date;

 

3.2.3that they are liable to be redeemed at the option of the Company;

 

3.2.4that they are liable to be redeemed at the option of the holder; and/or

 

3.2.5with any such other preferred, deferred, qualified or other special rights or such restrictions, whether in regard to dividend, voting, return of capital, conversion or otherwise, as the Directors by resolution shall determine.

 

The Directors are authorised to change the designations, rights, preferences and limitations of any series of preferred shares theretofore established, no shares of which have been issued.

 

3.3The following rights shall attach to the Deferred Shares:

 

3.3.1the holders of the Deferred Shares shall not be entitled to receive notice of, attend, speak or vote at, any general meeting of the Company;

 

3.3.2the holders of the Deferred Shares shall not be entitled to receive any dividend declared, made or paid or any return of capital (save as provided for in this Article) and shall not be entitled to any further right of participation in the assets of the Company;

 

3.3.3on a winding up of the Company, or other return of capital by the Company (other than on a redemption of any class of shares in the capital of the Company), the holders of the Deferred Shares shall be entitled to participate in such winding up or return of capital, provided that such entitlement shall be limited to the repayment of the amount paid up or credited as paid up on the Deferred Shares and shall be paid only after the holders of the Ordinary Shares shall have received payment in respect of such amount as is paid up or credited as paid up on the Ordinary Shares held by them at that time, plus the payment in cash of US$5,000,000 on each such Ordinary Share; and

 

3.3.4the Company as agent for the holders of Deferred Shares shall have the irrevocable authority to authorise and instruct the secretary (or any other person as the Directors determine) to acquire, or to accept the surrender of, the Deferred Shares for no consideration or for valuable consideration and to execute on behalf of such holders such documents as are necessary in connection with such acquisition or surrender, and pending such acquisition or surrender to retain the certificates, to the extent issued, for such Deferred Shares. Any request by the Company to acquire, or for the surrender of, any Deferred Shares may be made by the Directors depositing at the office a notice addressed to such person as the Directors shall have nominated on behalf of the holders of Deferred Shares. A person whose shares have been acquired or surrendered in accordance with this Article 3.3 shall cease to be a holder of such Deferred Shares but shall notwithstanding remain liable to pay the Company all monies which, at the date of acquisition or surrender, were payable by him or her to the Company in respect of such shares, but his or her liability shall cease if and when the Company has received payment in full of all such monies in respect of such shares.

 

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4Rights of Shares on Issue

 

Without prejudice to any special rights conferred on the Holders of any existing shares or class(es) of shares, and subject to the provisions of the Act any share may be issued with such rights or restrictions (except, in the case of any share to be listed on the Stock Exchange, restrictions on transferability) as the Company may by ordinary resolution determine.

 

5Redeemable Shares

 

Subject to the provisions of the Act any shares may be issued on the terms that they are, or, at the option of the Company or the Holder are, liable to be redeemed on such terms and in such manner as the Company may determine. Subject as aforesaid, the Company may cancel any shares so redeemed or may hold same as Treasury Shares with liberty to re-issue the same.

 

6Allotment of Shares

 

6.1Subject to the provisions of the Act relating to authority, pre-emption or otherwise in regard to the issue of new shares and to any resolution of the Company in general meeting passed pursuant thereto, all unissued shares (including, without limitation, Treasury Shares) shall be at the disposal of the Directors, and (subject to the provisions of the Act) they may allot, grant options over, or rights to acquire, or otherwise dispose of them to such persons on such terms and conditions and at such times as they may consider to be in the best interests of the Company.

 

6.2Without prejudice to the generality of the powers conferred on the Directors by other provisions of this Article 6 and Article 7 and the powers and rights of the Directors under or in connection with any share option schemes, share incentives or arrangements which were adopted or entered into by the Company on or prior to the adoption of these Articles, the Directors may from time to time grant options to subscribe or rights to acquire, for the unallotted shares in the capital of the Company to persons in the service or employment of the Company or any subsidiary or associated company of the Company (including Directors holding executive offices) on such terms and subject to such conditions as the members of the Company in general meeting may from time to time approve.

 

6.3The Company may issue warrants to subscribe (by whatever name they are called) to any person to whom the Company has granted the right to subscribe for shares in the Company (other than under a share option scheme for employees) certifying the right of the registered holder thereof to subscribe for shares in the Company upon such terms and conditions as the right may have been granted.

 

7Section 1023 Authority

 

7.1Subject to the Directors being generally authorised pursuant to Section 1021 of the Act and to the passing of a special resolution of the Company empowering the Directors so to do, the Directors may, pursuant to and subject to the provisions of Section 1023 of the Act, for the duration of each Allotment Period, allot equity securities (as defined by Section 1023 of the Act) for cash pursuant to the authority conferred by the said Section 1021, and the Directors may allot and issue Treasury Shares for cash, in each case as if the said as if Section 1022 did not apply to any such allotment, provided that such power shall be limited to:

 

7.1.1the allotment of equity securities (including without limitation, Treasury Shares) in connection with a Pre-emptive Issue;

 

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7.1.2the allotment (otherwise than pursuant to Article 7.1.1) of equity securities up to an aggregate nominal amount equal to the Section 1023 Amount for the time being in force;

 

7.1.3the allotment of equity securities to any persons having a right to subscribe for or convert securities into Ordinary Shares (including, without limitation, any holders of options under any of the Company’s share option schemes and / or share incentive plan for the time being).

 

7.2Before the expiry of any Allotment Period the Company may make an offer or agreement which would or might require equity securities (as defined by Section 1023 of the Act) or other relevant securities (as defined by the Section 1021 of the Act) to be allotted after such expiry. The Directors may allot equity securities and / or other relevant securities in pursuance of that offer or agreement as if the Allotment Period during which that offer or agreement was made had not expired.

 

7.3In this Article 7:

 

“Allotment Period”, means any period for which the authority provided for in Section 1023 is renewed or otherwise granted by special resolution of the Company in general meeting;

 

“Pre-emptive Issue”, means an offer of equity securities to the Holders of Ordinary Shares or an invitation to the Holders of Ordinary Shares (other than those holders with registered addresses outside the State to whom an offer would, in the opinion of the Directors, be impractical or unlawful in any jurisdiction) to apply to subscribe for equity securities (whether by way of rights issue, open offer or otherwise) where the equity securities respectively attributable to the interests of the Holders of Ordinary Shares are proportionate (as nearly as practicable) to the respective numbers of Ordinary Shares held by them, but subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or any legal, regulatory or practical problems under the laws or regulations of any territory or the requirements of any regulatory body or stock exchange; and

 

“Section 1023 Amount”, shall, for any Allotment Period, be the amount so stated in the relevant special resolution granting or renewing the power pursuant to Section 1023.

 

8Variation of Rights

 

8.1Whenever the share capital is divided into different classes of shares, the rights attached to any class may be varied or abrogated with the consent in writing of the Holders of three-fourths in nominal value of the issued shares of that class, or with the sanction of a special resolution passed at a separate general meeting of the Holders of the shares of that class and may be so varied or abrogated either whilst the Company is a going concern or during or in contemplation of a winding-up. The quorum at any such meeting, other than an adjourned meeting, shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class and the quorum at an adjourned meeting shall be one person holding shares of the class or his proxy.

 

8.2Unless otherwise provided by the rights attached to any shares and without prejudice to any such provisions, the rights attaching to any shares (the “Existing Shares”) shall be deemed to be varied by:

 

8.2.1the reduction of the capital paid up on the Existing Shares; or

 

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8.2.2the allotment of any shares, created after the date of first creation of the class of the Existing Shares, which (a) rank in priority to the Existing Shares for payment of a dividend or in respect of capital, or (b) confer on the Holders thereof voting rights more favourable than those conferred by the Existing Shares;

 

but shall not otherwise be deemed to be varied by the creation or issue of further shares or by any purchase or redemption by the Company of any of its own shares.

 

9Purchase of Own Shares

 

9.1Subject to the provisions of, and to the extent permitted by, the Act and to any rights conferred on the Holders of any class of shares and to the following Articles of this Article, the Company and / or any subsidiary (as such expression is defined by Section 7 of the Act) may purchase any of its shares of any class (“Acquired Shares” or “Acquired Share”, as appropriate) on such terms and conditions and in such manner as the Directors may from time to time determine.

 

9.2Neither the Company nor the Directors shall exercise any authority granted under Section 1074 of the Act to make market purchases or overseas market purchases of its own shares unless the authority required by such Section shall have been granted by ordinary resolution of the Company.

 

9.3Neither the Company nor the Directors shall be required to select the Acquired Shares to be purchased on a pro rata basis or in any particular manner as between the Holders of shares of the same class or as between the Holders of shares of different classes or in accordance with the rights as to dividends or capital attached to any class of shares.

 

9.4Unless the Directors specifically elect to treat such acquisition as a purchase for the purposes of the Act, an Ordinary Share shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company and any person (who may or may not be a member of the Company) pursuant to which the Company acquires or will acquire Ordinary Shares, or an interest in Ordinary Shares, from such third party. In these circumstances, the acquisition of such Ordinary Shares or an interest in such Ordinary Shares by the Company, save where acquired otherwise than for valuable consideration in accordance with the Act, shall constitute the redemption of a Redeemable Share in accordance with the Act. No resolution, whether special or otherwise, shall be required to be passed to deem any ordinary share a Redeemable Share.

 

10Reissue of Treasury Shares

 

Where the Company has been authorised by a special resolution passed in general meeting to re-issue Treasury Shares (as provided for in Section 1078 of the Act) the Company may re-issue such Treasury Shares in accordance with such authority and in such manner as the Directors of the Company may from time to time determine and the Directors may resolve to permit the re-issue of Treasury Shares to be paid for in a currency or currencies other than euro and, in such cases, the payment shall be subject to the conversion rate or rates as may be determined by the Directors in relation thereto.

 

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11Trusts Not Recognised

 

No person shall be recognised by the Company as holding any share upon any trust, and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share or any interest in any fractional part of a share or (except only as by these Articles or by law otherwise provided) any other rights in respect of any share except an absolute right to the entirety thereof in the Holder. This shall not preclude the Company from requiring a Holder or a transferee to furnish the Company with information as to the beneficial ownership of any share or information as to any person who has an Interest in any such share and the nature and extent of the Interest of each such person when such information is reasonably required by the Company or is required in accordance with Article 12.

 

12Disclosure of Interests

 

12.1Notwithstanding the provisions of the immediately preceding Article, the Directors may at any time and from time to time if, in their absolute discretion, they consider it to be in the interests of the Company to do so, give a notice to the Holder or Holders of any share (or any of them) requiring such Holder or Holders to notify the Company in writing within such period as may be specified in such notice (which shall not be less than fourteen days) of full and accurate particulars of all or any of the following matters, namely:

 

12.1.1his Interest in such share;

 

12.1.2if his Interest in the share does not consist of the entire beneficial interest in it, the Interests of all persons having any beneficial interest (direct or indirect) in the share (provided that one joint Holder of a share shall not be obliged to give particulars of Interests of persons in the share which arise only through another joint Holder);

 

12.1.3any arrangements (whether legally binding or not) entered into by him or any person having any beneficial interest in the share whereby it has been agreed or undertaken or the Holder of such share can be required to transfer the share or any Interest therein to any person (other than a joint Holder of the share) or to act in relation to any meeting of the Company or of any class of shares of the Company in a particular way or in accordance with the wishes or directions of any other person (other than a person who is a joint Holder of such share); and

 

12.1.4any information which the Company is entitled to seek pursuant to Section 1062 of the Act.

 

12.2If, pursuant to any notice given under Article 12.1, the person stated to own any beneficial interest in a share or the person in favour of whom any Holder (or other person having any beneficial interest in the share) has entered into any arrangements referred to in Article 12.1.3, is a body corporate, trust, society or any other legal entity or association of individuals and / or entities, the Directors may at any time and from time to time if, in their absolute discretion, they consider it to be in the best interests of the Company to do so, give a notice to the Holder or Holders of such share (or any of them) requiring such Holder or Holders to notify the Company in writing within such period as may be specified in such notice (which shall not be less than fourteen days) of full and accurate particulars of the names and addresses of the individuals who control (whether directly or indirectly and through any number of vehicles, entities or arrangements) the beneficial ownership of all the shares, interests, units or other measure of ownership of such body corporate, trust, society or other entity or association wherever the same shall be incorporated, registered or domiciled or wherever such individuals shall reside provided that if at any stage of such chain of ownership the beneficial interest in any share shall be established to the satisfaction of the Directors to be in the ownership of (x) any body corporate whose ordinary shares are listed or admitted to or dealt in on any bona fide stock exchange, securities market or over-the-counter exchange, (y) a mutual assurance company, or (z) a bona fide charitable trust or foundation, it shall not be necessary to disclose details of the individuals ultimately controlling the beneficial interests in the shares of such body corporate, trust, society or other entity or association.

 

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12.3The Directors may, if they think fit, give notices under Article 12.1 and Article 12.2 at the same time on the basis that the notice given pursuant to Article 12.2 shall be contingent upon disclosure of certain facts pursuant to a notice given pursuant to Article 12.1.

 

12.4The Directors may (before or after the receipt of any written particulars under this Article) require any such particulars to be verified by statutory declaration.

 

12.5The Directors may serve any notice pursuant to the terms of this Article irrespective of whether or not the Holder on whom it shall be served may be dead, bankrupt, insolvent or otherwise incapacitated and no such incapacity or any unavailability of information or inconvenience or hardship in obtaining the same shall be a satisfactory reason for failure to comply with any such notice provided that if the Directors in their absolute discretion think fit, they may waive compliance in whole or in part with any notice given under this Article in respect of a share in any case of bona fide unavailability of information or genuine hardship or where they otherwise think fit but no such waiver shall in any way prejudice or affect any non-compliance not so waived whether by the Holder concerned or any other joint Holder of the share or by any person to whom a notice may be given at any time.

 

12.6For the purpose of establishing whether or not the terms of any notice served under this Article shall have been complied with, the decision of the Directors in this regard shall be final and conclusive and shall bind all persons interested.

 

12.7The provisions of this Article 12 and Article 13 are in addition to, and do not limit, any other right or power of the Company, including any right vested in or power granted to the Company by the Act.

 

13Restriction of Rights

 

13.1If at any time the Directors shall determine that a Specified Event (as defined by Article 13.7) shall have occurred in relation to any share or shares, the Directors may serve a notice to such effect on the Holder or Holders thereof. Upon the expiry of fourteen days from the service of any such notice (in these Articles referred to as a “Restriction Notice”), for so long as such Restriction Notice shall remain in force:

 

13.1.1no Holder or Holders of the share or shares specified in such Restriction Notice (in these Articles referred to as “Specified Shares”) shall, in relation to its Specified Shares, be entitled to attend, speak or vote either personally, by representative or by proxy at any general meeting of the Company or at any separate general meeting of the class of shares concerned or to exercise any other right conferred by membership in relation to any such meeting; and

 

13.1.2the Directors shall, where the Specified Shares represent not less than 0.25 per cent. of the class of shares concerned, be entitled:

 

(a)to withhold payment of any dividend or other amount payable (including shares issuable in lieu of dividend) in respect of the Specified Shares; and / or

 

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(b)to refuse to register any transfer of the Specified Shares or any renunciation of any allotment of new shares or debentures made in respect thereof unless such transfer or renunciation is shown to the satisfaction of the Directors to be a bona fide transfer or renunciation to another beneficial owner unconnected with the Holder or Holders or any person appearing to have an interest in the Specified Shares (subject always to the provisions of Article 13.3 and Article 13.8).

 

13.2A Restriction Notice shall be cancelled by the Directors not later than seven days after the Holder or Holders or other relevant person concerned shall have remedied the default by virtue of which the Specified Event shall have occurred. A Restriction Notice given in respect of any Specified Share as a result of a Specified Event described in Article 13.7.2 or Article 13.7.3, shall automatically be deemed to be cancelled on receipt by the Directors of evidence satisfactory to them that the Specified Share has been sold on a bona fide transfer or renunciation to another beneficial owner unconnected with the Holder or Holders or any person appearing to have an interest in the Specified Shares (subject always to the provisions of Article 13.3 and Article 13.8) or upon registration of a transfer of such share.

 

13.3A Restriction Notice shall not cease to have effect in respect of any transfer where no change in the beneficial ownership of the share shall occur and for this purpose, without prejudice to the generality of the foregoing provisions, it shall be assumed that no such change has occurred where a transfer form in respect of the share is presented for registration having been stamped at a reduced rate of stamp duty by virtue of the transferor or transferee claiming to be entitled to such reduced rate as a result of the transfer being one where no beneficial interest passes.

 

13.4The Directors shall cause a notation to be made in the Register against the name of any Holder or Holders in respect of whom a Restriction Notice shall have been served indicating the number of the Specified Shares and shall cause such notation to be deleted upon cancellation or cesser of such Restriction Notice. Any determination of the Directors and any notice served by them pursuant to the provisions of this Article shall be conclusive as against the Holder or Holders of any share and the validity of any notice served by the Directors in pursuance of this Article shall not be questioned by any person.

 

13.5If, while any Restriction Notice shall remain in force in respect of any Specified Shares, any further shares shall be issued in respect thereof pursuant to a capitalisation issue made in pursuance of these Articles (including, without limitation, any capitalisation effected pursuant to the provisions of Article 109), the Restriction Notice shall be deemed also to apply in respect of such further shares which shall as from the date of issue thereof form part of the Specified Shares for all purposes of this Article.

 

13.6On the cancellation of any Restriction Notice the Company shall pay to the Holder (or, in the case of joint Holders, the first named Holder) on the Register in respect of the Specified Shares as of the record date for any such dividend so withheld, all such amounts as have been withheld pursuant to the provisions of this Article subject always to the provisions of Article 116 which shall be deemed to apply, mutatis mutandis, to any amount so withheld.

 

13.7For the purposes of these Articles, the expression “Specified Event” in relation to any share shall mean any of the following events:

 

13.7.1the failure of the Holder or Holders thereof to pay any call or instalment of a call in the manner and at the time appointed for payment;

 

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13.7.2the failure by the Holder thereof or any of the Holders thereof to comply, to the satisfaction of the Directors, with all or any of the terms of Article 12 in respect of any notice or notices given to him or any of them thereunder; or

 

13.7.3the failure by the Holder thereof or any of the Holders thereof or any other person to comply, to the satisfaction of the Directors, with the terms of any notice given to him or any of them pursuant to the provisions of Section 1062 of the Act.

 

13.8For the purposes of Article 13.1.2(b) and Article 13.2 the Directors shall be required to accept as a bona fide transfer to another beneficial owner, any transfer which is presented for registration in pursuance of:

 

13.8.1any bona fide sale made on any bona fide stock exchange, securities market or over-the-counter exchange; or

 

13.8.2the acceptance of any general offer made to all the Holders of any class of shares in the capital of the Company.

 

14Payment of Commission

 

The Company may exercise the powers of paying commissions conferred by the Act. Subject to the provisions of the Act any such commission may be satisfied by the payment of cash or by the allotment of fully or partly paid shares or partly in one way and partly in the other. The Company may also, on any issue of shares, pay such brokerage as may be lawful.

 

PART III — SHARE CERTIFICATES

 

15Issue of Certificates

 

15.1With effect from the date of adoption of these Articles and unless otherwise determined by the Directors or by the rights attaching to or the terms of issue of any particular shares, or to the extent required by the Act, any stock exchange, depository, central securities depository or any operator of any clearance or settlement system: (i) shares in the capital of the Company shall be issued in registered form and (ii) no person whose name is entered as a member in the Register shall be entitled to receive a share certificate for any shares of any class held by him or her in the capital of the Company (nor on transferring part of a holding, to a certificate for the balance).

 

15.2Delivery of a certificate to one joint Holder shall be a sufficient delivery to all of them.

 

15.3The Company shall not be bound to register more than four persons as joint Holders of any share (except in the case of executors or trustees of any deceased member).

 

15.4Every certificate shall be sealed with one of the Seals and shall specify the number, class and distinguishing numbers (if any) of the shares to which it relates and the amount or respective amounts paid up thereon.

 

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16Balance and Exchange Certificates

 

16.1Where some only of the shares comprised in a share certificate are transferred, the old certificate shall be cancelled and a new certificate for the balance of such shares shall be issued in lieu without charge.

 

16.2Any two or more certificates representing shares of any one class held by any member may at his request be cancelled and a single new certificate for such shares issued in lieu without charge unless the Directors otherwise determine. If any member shall surrender for cancellation a share certificate representing shares held by him and request the Company to issue in lieu two or more share certificates representing such shares in such proportions as he may specify, the Directors may, if they think fit, comply with such request.

 

17Replacement of Certificates

 

17.1If a share certificate is defaced, worn-out, lost, stolen or destroyed, it may be replaced on such terms (if any) as to evidence and indemnity and payment of any exceptional out of pocket expenses incurred by the Company as the Directors may determine but otherwise free of charge, and (in the case of defacement or wearing-out) on delivery up of the old certificate.

 

PART IV — LIEN ON SHARES

 

18Extent of Lien

 

The Company shall have a first and paramount lien on every share (not being a fully paid share) for all monies (whether presently payable or not) payable at a fixed time or called in respect of that share. The Directors at any time may declare any share to be wholly or in part exempt from the provisions of this Article. The Company’s lien on a share shall extend to all monies payable in respect of it.

 

19Power of Sale

 

The Company may sell in such manner as the Directors determine any share on which the Company has a lien if a sum in respect of which the lien exists is presently payable and is not paid within fourteen Clear Days after notice demanding payment, and stating that if the notice is not complied with the shares may be sold, has been given to the Holder of the share or to the person entitled to it by reason of the death, insolvency or bankruptcy of the Holder or who otherwise becomes entitled to the share by operation of law or regulation (whether of the State or otherwise), demanding payment.

 

20Power to Effect Transfer

 

To give effect to a sale pursuant to Article 19, the Directors may authorise some person to execute an instrument of transfer of the shares sold to, or in accordance with the directions of, the purchaser. The transferee shall be entered in the Register as the Holder of the shares comprised in any such transfer and he shall not be bound to see to the application of the purchase monies nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale, and after the name of the transferee has been entered in the Register, the remedy of any person aggrieved by the sale shall be in damages only and against the Company only. The Directors may, if deemed necessary or desirable, also change, or procure the changing of any share held in uncertificated form to be sold pursuant to the provisions of this Part IV into certificated form prior to any such sale and may, or may authorise any person or persons to execute and do all such documents, acts and things as may be required in order to effect such change.

 

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21Proceeds of Sale

 

The net proceeds of any sale effected pursuant to Article 19, after payment of any costs incurred in connection with such sale, shall be applied in payment of so much of the sum for which the lien exists as is presently payable and any residue (upon surrender to the Company for cancellation of any certificate for the shares sold and subject to a like lien for any monies not presently payable as existed upon the shares before the sale) shall be paid to the person entitled to the shares at the date of the sale.

 

PART V — CALLS ON SHARES AND FORFEITURE

 

22Making of Calls

 

22.1Subject to the terms of allotment, the Directors may make calls upon the members in respect of any monies unpaid on their shares (whether in respect of nominal value or premium) and each member (subject to receiving at least fourteen Clear Days’ notice specifying when and where payment is to be made) shall pay to the Company as required by the notice the amount called on his shares. A call may be required to be paid by instalments. A call may, before receipt by the Company of a sum due thereunder, be revoked in whole or in part and payment of a call may be postponed by the Directors in whole or in part. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the shares in respect of which the call was made.

 

22.2On the trial or hearing of any action for the recovery of any money due for any call it shall be sufficient to prove that the name of the member sued is entered in the Register as the Holder, or one of the Holders, of the shares in respect of which such debt accrued, that the resolution making the call is duly recorded in the minute book and that notice of such call was duly given to the member sued, in pursuance of these Articles, and it shall not be necessary to prove the appointment of the Directors who made such call nor any other matters whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt.

 

23Time of Call

 

A call shall be deemed to have been made at the time when the resolution of the Directors authorising the call was passed.

 

24Liability of Joint Holders

 

The joint Holders of a share shall be jointly and severally liable to pay all calls in respect thereof.

 

25Interest on Calls

 

If a call remains unpaid after it has become due and payable, the person or persons from whom it is due and payable shall pay interest on the amount unpaid from the day it became due until it is paid at the rate fixed by the terms of allotment of the share or in the notice of the call or, if no rate is fixed, at the appropriate rate (as defined by the Act) but the Directors may waive payment of the interest wholly or in part.

 

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26Instalments Treated as Calls

 

An amount payable in respect of a share on allotment or at any fixed date, whether in respect of nominal value or premium or as an instalment of a call, shall be deemed to be a call and if it is not paid the provisions of these Articles shall apply as if that amount had become due and payable by virtue of a call.

 

27Power to Differentiate

 

Subject to the terms of allotment, the Directors may make arrangements on the issue of shares for a difference between the Holders in the amounts and times of payment of calls on their shares.

 

28Notice Requiring Payment

 

If a call remains unpaid after it has become due and payable, the Directors may give to the person from whom it is due not less than fourteen Clear Days’ notice requiring payment of the amount unpaid together with any interest which may have accrued. The notice shall name the place where payment is to be made and shall state that if the notice is not complied with the shares in respect of which the call was made will be liable to be forfeited.

 

29Forfeiture

 

If the requirements of any notice given in accordance with the immediately preceding Articles are not complied with, any share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors to that effect, which shall specify those shares which are to be forfeited. The forfeiture shall include all dividends or other monies payable in respect of the forfeited share and not paid before the forfeiture. The Directors may accept a surrender of any share liable to be forfeited hereunder.

 

30Power of Disposal

 

Subject to the provisions of the Act a share forfeited (or surrendered in lieu thereof) may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors determine, either to the person who was before the forfeiture the Holder or to any other person. At any time before any such sale, re-allotment or other disposition, the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal such a share is to be transferred to any person, the Directors may authorise some person to execute an instrument of transfer of the share to that person. The Company may receive the consideration, if any, given for the share on any sale or disposition thereof and the person to whom the share is disposed of shall be registered as the Holder of the share and shall not be bound to see to the application of the consideration, if any, nor shall his title to the share be affected by any irregularity in or invalidity of the proceedings in reference to the forfeiture, surrender, sale, re-allotment or other disposal of the share.

 

31Effect of Forfeiture or Surrender

 

A person any of whose shares have been forfeited or surrendered, shall cease to be a member in respect of them and shall surrender to the Company for cancellation any certificates for the shares forfeited or surrendered but shall remain liable to pay to the Company all monies which at the date of forfeiture or surrender were payable by him to the Company in respect of those shares with interest at the rate at which interest was payable on those monies before the forfeiture or, if no interest was so payable, at the appropriate rate (as defined in the Act) from the date of forfeiture or surrender until payment but the Directors may waive payment wholly or in part or enforce payment without any allowance for the value of the shares at the time of forfeiture or surrender or for any consideration received on their disposal. Such liability shall cease if and when the Company shall have received payment in full of all such monies in respect of the shares.

 

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32Statutory Declaration

 

A statutory declaration by a Director or the Secretary that a share has been forfeited or surrendered on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share and the declaration shall (together with the receipt of the Company for the consideration, if any, given for the share on the sale or disposition thereof and a certificate by the Company for the share delivered to the person to whom the same is sold or disposed of) constitute a good title to the share.

 

PART VI — TRANSFER OF SHARES

 

33Transfer and Evidence of Title

 

33.1Subject to such of the restrictions of these Articles, the Act, the means of transferring title and evidence thereof in respect of the shares of any member shall be either by way of an instrument in writing (in any usual or other common form which the Directors may approve) or by way of electronic means in accordance with and subject to the provisions of Article 33.3 below. The Directors may also permit title to any Ordinary Shares in the Company to be transferred without a written instrument of transfer where permitted by the Act subject to compliance with the requirements imposed under the relevant provisions of the Act and any additional requirements which the Directors may approve.

 

33.2The instrument of transfer of any shares shall be executed by, or on behalf of the transferor or alternatively for and on behalf of the transferor by the Secretary (or such other person as may be nominated by the Secretary for this purpose) on behalf of the Company, and the Company, the Secretary (or relevant nominee) shall be deemed to have been irrevocably appointed agent for the transferor of such share or shares with full power to execute, complete and deliver in the name of, and on behalf of, the transferor of such share or shares all such transfer of shares held by the Holders in the share capital of the Company. An instrument of transfer need not be executed by the transferee save that if the share or shares concerned are not full paid, the instrument shall be executed by, or on behalf of, the transferor and the transferee. The transferor shall be deemed to remain the Holder of the share, or shares, until the name of the transferee is entered into the Register in respect thereof.

 

33.3Notwithstanding any other provision of these Articles and subject to the regulations made under Section 1086 of the Act, title to any shares in the Company may also be evidenced and transferred without written instrument in accordance with Section 1086 of the Act or any regulations made thereunder. The Directors shall have the power to permit any class of share to be held in uncertificated form and to implement any arrangements or statutory provisions, and in particular shall, where appropriate, be entitled to disapply or modify all of part of the provisions of these Articles with respect to the requirement for written instruments of transfer and share certificated, in order to give effect to such regulations.

 

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33.4The Company, at its absolute discretion and insofar as the Act or any other applicable law permits may or may procure that a subsidiary of the Company shall, pay Irish stamp duty arising on a transfer of Ordinary Shares on behalf of the transferee of such Ordinary Shares of the Company. If stamp duty resulting from the transfer of Ordinary Shares in the Company which would otherwise be payable by the transferee is paid by the Company or any subsidiary of the Company on behalf of the transferee, then in those circumstances, the Company shall, on its behalf or on behalf of its subsidiary (as the case may be), be entitled to (i) seek reimbursement of the stamp duty from the transferee, (ii) set off the stamp duty against an dividends payable to the transferee of those Ordinary Shares and (iii) claim a first and paramount lien on the Ordinary Shares on which stamp duty has been paid by the Company or its subsidiaries for the amount of stamp duty paid.

 

34Status of Holder

 

The transferor of any share shall be deemed to remain the Holder of the share until the name of the transferee is inserted in the Register in respect thereof.

 

35Refusal to Register Transfers

 

35.1Section 95(1) of the Act shall not apply to the Company.

 

35.2The Directors may, in their absolute discretion and without giving any reason, refuse to register:

 

35.2.1the transfer of a share or any renunciation of any allotment made in respect of a share which is not fully paid; or

 

35.2.2any transfer of a share to or by a minor or a person of unsound mind or any renunciation of a share to or by any such person,

 

provided that in the case of any such shares which are listed on a Stock Exchange, the Directors shall allow dealings in such shares to take place on an open and proper basis.

 

35.3The Directors may also refuse to register any instrument of transfer or any renunciation of any allotment made in respect of a share (whether or not it is in respect of a fully paid share) unless it is:

 

35.3.1duly stamped and it is lodged at the Office or at such other place as the Directors may appoint;

 

35.3.2accompanied by the certificate (if any) for the shares to which it relates and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer or renunciation;

 

35.3.3in respect of only one class of shares; and

 

35.3.4in favour of not more than four transferees.

 

35.4If the Directors refuse to register a transfer they shall, within two months after the date on which the transfer was lodged with the Company, send to the transferee notice of the refusal.

 

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36Closing of Transfer Books

 

The registration of transfers of shares or of transfers of any class of shares may be suspended at such times and for such periods (not exceeding thirty days in each year) as the Directors may determine.

 

37Absence of Registration Fees

 

Notwithstanding Section 95(2)(a) of the Act, no fee shall be charged for the registration of any instrument of transfer or other document relating to or affecting the title to any share.

 

38Retention of Transfer Instruments

 

The Company shall be entitled to retain any instrument of transfer which is registered, but any instrument of transfer which the Directors refuse to register shall be returned to the person lodging it when notice of the refusal is given.

 

39Renunciation of Allotment

 

Nothing in these Articles shall preclude the Directors from recognising a renunciation of the allotment of any shares by the allottee in favour of some other person.

 

PART VII — TRANSMISSION OF SHARES

 

40Death of a Member

 

If a member dies, the survivor or survivors, where he was a joint Holder, and his personal representatives, where he was a sole Holder or the only survivor of joint Holders, shall be the only persons recognised by the Company as having any title to his interest in the shares; but nothing herein contained shall release the estate of a deceased member from any liability in respect of any share which had been jointly held by him.

 

41Transmission on Death or Bankruptcy

 

A person becoming entitled to a share in consequence of the death, bankruptcy, liquidation or insolvency of a member or otherwise becoming entitled to share by operation of any law, directive or regulation (whether of the State or elsewhere) may, upon such evidence of title being produced as the Directors may reasonably require, elect either to become the Holder of the share or to have some person nominated by him registered as the transferee. If he elects to become the Holder he shall give notice to the Company to that effect. If he elects to have another person registered he shall execute an instrument of transfer of the share to that person and if the Directors are satisfied with the evidence of title produced to them, they may register such person as the holder of the share, subject to the Act and the other provisions of these Articles. All of these Articles relating to the transfer of shares shall apply to the notice or instrument of transfer as if it were an instrument of transfer executed by the member and the event giving rise to the entitlement of the relevant person to the shares had not occurred.

 

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42Rights before Registration

 

A person becoming entitled to a share by reason of any of the circumstances set out in Article 41 (upon supplying to the Company such evidence as the Directors may reasonably require to show his title to the share) shall have the rights to which he would be entitled if he were the Holder of the share, except that he shall not, before being registered as the Holder of the share, be entitled in respect of it to attend or vote at any meeting of the Company or at any separate meeting of the Holders of any class of shares in the Company, so, however, that the Directors may at any time give notice requiring any such person to elect either to be registered himself or to transfer the share, and if the notice is not complied with within ninety days, the Directors may thereupon withhold payment of all dividends, bonuses or other monies payable in respect of the share until the requirements of the notice have been complied with.

 

PART VIII — ALTERATION OF SHARE CAPITAL

 

43Increase of Capital

 

43.1The Company may from time to time by ordinary resolution increase the share capital by such sum, to be divided into shares of such amount and of such class or classes, as the resolution shall prescribe.

 

43.2Except so far as otherwise provided by the conditions of issue or by these Articles, any capital raised by the creation of new shares shall be considered part of the pre-existing ordinary share capital and shall be subject to the provisions herein contained with reference to the payment of calls and instalments, transfer and transmission, forfeiture, lien and otherwise.

 

44Consolidation, Sub-Division and Cancellation of Capital

 

The Company may by ordinary resolution:

 

44.1consolidate and divide all or any of its share capital into shares of larger amount than its existing shares;

 

44.2subject to the provisions of the Act, sub-divide its shares, or any of them, into shares of smaller amount, so however that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each sub-divided share shall be the same as it was in the case of the share from which the sub-divided share is derived (and so that the resolution whereby any share is sub-divided may determine that, as between the Holders of the shares resulting from such sub-division, one or more of the shares held by a Holder may, as compared with the others, have any such preferred, deferred or other rights or be subject to any such restrictions as the Company has power to attach to unissued or new shares); or

 

44.3cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and reduce the amount of its authorised share capital by the amount of the shares so cancelled.

 

45Fractions on Consolidation

 

Subject to the provisions of these Articles, whenever as a result of a consolidation of shares any members would become entitled to fractions of a share, the Directors may, on behalf of those members, sell the shares representing the fractions for the best price reasonably obtainable to any person and distribute the net proceeds of sale (after expenses) in due proportion among those members (save that the Directors may in any such case determine that amounts of US$20 or less shall not be distributed but shall be retained for the benefit of the Company), and the Directors may authorise some person to execute an instrument of transfer of the shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.

 

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46Reduction of Capital

 

The Company may by special resolution reduce its share capital, any capital redemption reserve fund or any share premium account or any undenominated capital in any manner and with, and subject to, any incident authorised, and consent required, by law.

 

PART IX — GENERAL MEETINGS

 

47Annual General Meetings

 

Save as otherwise provided by the Act, the Company shall in each year hold a general meeting as its annual general meeting in addition to any other meeting in that year and shall specify the meeting as such in the notices calling it.

 

48Extraordinary General Meetings

 

All general meetings other than annual general meetings shall be called extraordinary general meetings.

 

49Convening General Meetings

 

The Directors may convene general meetings. Extraordinary general meetings may also be convened on such requisition, or in default, may be convened by such requisitionists and in such manner as may be provided by the Act.

 

50Notice of General Meetings

 

50.1Subject to the provisions of the Act allowing a general meeting to be called by shorter notice, an annual general meeting and an extraordinary general meeting called for the passing of a special resolution shall be called by at least twenty-one Clear Days’ notice and all other extraordinary general meetings shall also be called by at least twenty-one Clear Days’ notice, except that it may be called by fourteen days’ notice (whether in electronic form or otherwise) where:

 

50.1.1all members, who hold shares that carry rights to vote at the meeting, are permitted to vote by electronic means either before or at the meeting; and

 

50.1.2a special resolution reducing the period of notice to fourteen days has been passed at the immediately preceding annual general meeting, or at a general meeting held since that annual general meeting.

 

50.2Any notice convening a general meeting shall specify the time and place of the meeting (including without limitation any satellite meeting place arranged for the purposes of Article 50.4, which shall be identified as such in the notice) and the general nature of the business to be transacted. It shall also give particulars of any Directors who are to retire by rotation or otherwise at the meeting and of any persons who are recommended by the Directors for appointment or re-appointment as Directors at the meeting, or in respect of whom notice has been duly given to the Company in accordance with Articles 53 and 54 of the intention to propose them for appointment or re-appointment as Directors at the meeting. Subject to any restrictions imposed on any shares, the notice shall be given to all the members, to all persons entitled to a share by reason of the death or bankruptcy of a member and to the Directors and the Auditors.

 

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50.3The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at the meeting.

 

50.4The Directors may, for the purpose of controlling the level of attendance and / or ensuring the safety of those attending at any place specified for the holding of a general meeting, from time to time make such arrangements as the Directors shall in their absolute discretion consider to be appropriate, and may from time to time vary any such arrangements or make new arrangements in place thereof. The entitlement of any member or proxy to attend a general meeting at such place shall be subject to any such arrangements as may be for the time being approved by the Directors and by the notice of meeting stated to apply to that meeting. In the case of any general meeting to which such arrangements apply the Directors may, when specifying the place of the general meeting:

 

50.4.1direct that the meeting shall be held at a place specified in the notice at which the chairperson of the meeting shall preside (“Principal Place”); and

 

50.4.2exclude certain members from attending the meeting at the Principal Place and make arrangements for simultaneous attendance and participation at other satellite places by these members otherwise entitled to attend the general meeting but excluded therefrom under the provisions of this Article or who wish to attend at any of such other satellite places, provided that persons attending at the Principal Place and at any of such other satellite places shall be able to see and hear and be seen and heard by persons attending at the Principal Place and at such other satellite places by any means including electronic means such as video links.

 

50.5Such arrangements for simultaneous attendance may include arrangements for controlling the level of attendance in any manner aforesaid at such other satellite places provided that they shall operate so that any such excluded members as aforesaid are able to attend at one of such other satellite places. For the purposes of all other provisions of these Articles any such meeting shall be treated as being held and taking place at the Principal Place and the members present in person or by proxy at the other satellite places shall be counted in the quorum for, and entitled to vote at, the general meeting in question and that meeting shall be duly constituted and its proceedings valid.

 

50.6The Directors may direct that any person wishing to attend any meetings should provide such evidence of identity and submit to such searches or other security arrangements or restrictions as the Directors shall consider appropriate in the circumstances and shall be entitled in their absolute discretion to refuse entry to any meeting to any person who fails to provide such evidence of identity or to submit to such searches or otherwise to comply with such security arrangements or restrictions. If it appears to the chairperson of the general meeting that the facilities at the Principal Place or any satellite meeting place have become inadequate for the purposes referred to in Article 50.4, then the chairperson may, without the consent of the meeting, interrupt or adjourn the general meeting. All business conducted at the general meeting up to the time of that adjournment shall be valid. The provisions of Article 57 shall apply to that adjournment.

 

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50.7Subject to the provisions of the Act concerning general meetings, the Directors may resolve to enable attendance at all general meetings (including annual, extraordinary and class meetings of the members of the Company) by the use of a webcast, conference telephone or any other type of electronic means provided that the members (whether present in person, by proxy or by authorised representative), other persons entitled to attend such meetings and the Auditors have been notified of the convening of the meeting and the availability of the webcast, conference telephone or other type of electronic means for the meeting and, if present at the meeting as herein provided, can hear and speak at the meeting. Such participation in a meeting shall constitute presence and attendance in person at the meeting and the persons in attendance may be situated in any part of the world for any such meeting.

 

51Change in Venue or Time of Meeting

 

51.1If, after the sending of a notice of a general meeting but before the meeting is held, or after the adjournment of a general meeting but before the adjourned meeting is held (whether or not notice of the adjourned meeting is required), the Directors decide that it is impracticable or unreasonable, for a reason beyond their control, to hold the meeting at the declared place (or any of the declared places, in the case of a meeting to which Article 50.4 applies) and / or time, they may change the place (or any of the places in the case of a meeting to which Article 50.4 applies) and / or postpone the time at which the meeting is to be held. If such a decision is made, the Directors may then change the place (or any of the places, in the case of a meeting to which Article 50.4 applies) and / or postpone the time again if it decides that this is reasonable to do so. In either case:

 

51.1.1no new notice of the meeting need be sent but the Directors shall, if practicable, advertise the date, time and place of the meeting in at least two newspapers having a national circulation and shall make arrangements for notices of the change of place and / or postponement to appear at the original place and time; and

 

51.1.2a proxy appointment in relation to the meeting may, if by means of an instrument in physical form, be delivered to the Office or to such other place as may be specified by or on behalf of the Company in accordance with Article 67 or, if in electronic form, be received at the address and in the manner specified by or on behalf of the Company in accordance with Article 67 at any time not later than the latest time approved by the Directors (subject to the requirements of the Act), and in default shall not be treated as valid.

 

PART X — PROCEEDINGS AT GENERAL MEETINGS

 

52Quorum for General Meetings

 

52.1No business other than the appointment of a chairperson shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business. Except as provided in relation to an adjourned meeting, two persons entitled to vote upon the business to be transacted, each being a member or a proxy for a member or a duly authorised representative of a corporate member, shall be a quorum.

 

52.2If such a quorum is not present within five minutes (or such longer time not exceeding 30 minutes as the chairperson of the meeting may decide) from the time appointed for the meeting, the meeting, if convened on the requisition of members, shall be dissolved and in any other case, shall stand adjourned to the same day in the next week at the same time and place, or to such time and place as the chairperson of the meeting may determine.

 

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53Order of Business

 

53.1At any annual general meeting of the members, only such nominations of individuals for election to the board of Directors shall be made, and only such other business shall be conducted or considered, as shall have been properly brought before the meeting. For nominations to be properly made at an annual general meeting, and for other business to be properly brought before an annual general meeting, such nominations and other business must be: (a) specified in the Company’s notice of meeting (or any supplement thereto) given by or at the direction of the board of Directors; otherwise made at the annual general meeting by or at the direction of the board of Directors; or otherwise properly requested to be brought before the annual general meeting by a member of the Company in accordance with Articles 53 and 54. For nominations of individuals for election to the board of Directors or other business to be properly requested by a member to be made at or brought before an annual general meeting pursuant to clause (c) above, a member must: (i) be a Holder at the time of giving of notice of such annual general meeting by or at the direction of the board of Directors, on the record date for determination of members entitled to vote at such meeting, and at the time of the annual general meeting; (ii) be entitled to vote at such annual general meeting; and (iii) comply with the procedures set forth in these Articles as to such nomination or other business. This Article 53.1 shall be the exclusive means for a member to make nominations or to bring other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Company’s notice of meeting) before an annual general meeting of members.

 

53.2At any extraordinary general meeting of the members, only such business shall be conducted or considered as shall have been properly brought before the meeting. To be properly brought before an extraordinary general meeting, such business must be: (a) specified in the Company’s notice of meeting (or any supplement thereto) given by or at the direction of the board of Directors; (b) otherwise brought before the extraordinary general meeting by or at the direction of the board of Directors; or (c) otherwise properly brought before the extraordinary general meeting by a member of the Company pursuant to the valid exercise of power granted to them under Section 178 of the Act to submit a requisition to the Company to convene an extraordinary general meeting (such requisition, an “EGM Request”) and in accordance with Articles 53 and 54; provided, however, that nothing herein shall prohibit the board of Directors from submitting additional matters to members at any such extraordinary general meeting. Nominations of individuals for election to the board of Directors may be made at an extraordinary general meeting of members at which Directors are to be elected pursuant to the Company’s notice of meeting: (a) by or at the direction of the board of Directors; or (b) by any member of the Company who: (i) is a Holder at the time of giving of notice of such extraordinary general meeting, on the record date for determination of members entitled to vote at such meeting, and at the time of the extraordinary general meeting; (ii) is entitled to vote at the meeting; and (iii) complies with the procedures set forth in these Articles as to such nomination.

 

53.2.1A beneficial owner who wishes to deliver an EGM Request must cause the nominee or other person who serves as the Holder of such beneficial owner’s shares of the Company to sign the EGM Request. If a Holder is the nominee for more than one beneficial owner of shares of the Company, the Holder may deliver an EGM Request solely with respect to the shares of the Company beneficially owned by the beneficial owners who are directing the Holder to sign such EGM Request.

 

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53.2.2This Article 53.2 shall be the exclusive means for a member to make nominations or to bring other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Company’s notice of meeting) before an extraordinary general meeting of members. For the avoidance of doubt, nothing in these Articles shall be construed to confer on any member the right to request an extraordinary general meeting or to make nominations or to bring any other business at any extraordinary general meeting (whether requisitioned by members pursuant to an EGM Request or otherwise), or to expand any rights that members have with respect to any extraordinary general meeting that is held in connection with an EGM Request (including any such extraordinary general meeting that is convened by the board of Directors in response to an EGM Request) beyond those rights provided to members under Section 178 of the Act.

 

53.3Except as otherwise provided by the Act, the memorandum of association or these Articles, the chairperson of any annual or extraordinary general meeting shall have the power to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with these Articles and, if any proposed nomination or other business is not in compliance with these Articles, to declare that no action shall be taken on such nomination or other business and such nomination or other business shall be disregarded.

 

54Advance Notice of Member Business and Nominations

 

54.1Without qualification or limitation, for any nominations or any other business to be properly brought before an annual general meeting by a member pursuant to Article 53.1, the member must have given timely notice thereof in writing to the Secretary in proper form, and in accordance with this Article 54.

 

54.1.1To be timely, a member’s notice shall be delivered to the Secretary at the Office not earlier than the close of business on the one hundred and twentieth (120th) day and not later than the close of business on the ninetieth (90th) day prior to the first anniversary of the preceding year’s annual general meeting (which first anniversary date shall, for the purposes of the Company’s first annual general meeting held after the Effective Time (the “First Annual Meeting”), be deemed to be April 26, 2025); provided, however, that in the event that no annual general meeting was held in the previous year (other than in connection with the First Annual Meeting) or the date of the annual general meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the member must be so delivered not earlier than the close of business on the one hundred and twentieth (120th) day prior to the date of such annual general meeting and not later than the close of business on the later of the ninetieth (90th) day prior to the date of such annual general meeting or, if the first Public Announcement of the date of such annual general meeting is less than one hundred (100) days prior to the date of such annual general meeting, the tenth (10th) day following the day on which Public Announcement of the date of such meeting is first made by the Company. In no event shall any adjournment, recess, rescheduling or postponement of an annual general meeting, or the Public Announcement thereof, commence a new time period for the giving of a member’s notice as described above. For the avoidance of doubt, a member shall not be entitled to make additional or substitute nominations following the expiration of the time periods set forth in these Articles.

 

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54.1.2Notwithstanding anything in Article 54.1.1 to the contrary, in the event that the number of Directors to be elected to the board of Directors is increased by the board of Directors, and there is no Public Announcement by the Company naming all of the nominees for Director or specifying the size of the increased board of Directors at least ten (10) days prior to the deadline for nominations that would otherwise be applicable under this Article 54.1, a member’s notice required by this Article 54.1 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the Office not later than the close of business on the tenth (10th) day following the day on which such Public Announcement is first made by the Company.

 

54.2Subject to Article 54.8, but otherwise without qualification or limitation, for any business to be properly requested to be brought before an extraordinary general meeting by a member, the member must have given timely notice thereof in writing to the Secretary in proper form and in accordance with this Article 54, and such business must otherwise be a proper matter for member action.

 

54.2.1Subject to Article 54.8, in the event an extraordinary general meeting of members is called by a member of the Company pursuant to an EGM Request, a purpose of which is the election of one or more Directors to the board of Directors, the right of any member to nominate an individual or individuals (as the case may be) for election to such position(s) as specified in the Company’s notice of meeting shall be subject to such member having given timely notice thereof. To be timely, a member’s notice shall be delivered to the Secretary at the Office not earlier than the close of business on the one hundred and twentieth (120th) day prior to the date of such extraordinary general meeting and not later than the close of business on the later of the ninetieth (90th) day prior to the date of such extraordinary general meeting or, if the first Public Announcement of the date of such extraordinary general meeting is less than one hundred (100) days prior to the date of such extraordinary general meeting, the tenth (10th) day following the day on which Public Announcement is first made of the date of the extraordinary general meeting and, if applicable, of the nominees proposed by the board of Directors to be elected at such meeting. In no event shall any adjournment, recess, rescheduling or postponement of an extraordinary general meeting of members, or the Public Announcement thereof, commence a new time period for the giving of a member’s notice as described above. For the avoidance of doubt, a member shall not be entitled to make additional or substitute nominations following the expiration of the time periods set forth in these Articles.

 

54.2.2Notwithstanding anything in Article 54.2.1 to the contrary, in the event that the number of Directors to be elected to the board of Directors is increased by the board of Directors, and there is no Public Announcement by the Company naming all of the nominees for Director or specifying the size of the increased board of Directors at least ten (10) days prior to the deadline for nominations that would otherwise be applicable under this Article 54.2, a member’s notice required by this Article 54.2 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the Office not later than the close of business on the tenth (10th) day following the day on which such Public Announcement is first made by the Company.

 

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54.3Without prejudice to the generality of Article 12, to be in proper form, a member’s notice pursuant to Article 53 or this Article 54 must include the following, as applicable:

 

54.3.1As to the member giving the notice and the beneficial owner, if any, on whose behalf the nomination is made or business is brought, as applicable, a member’s notice must set forth: (i) the name and address of such member, as they appear on the Register, of such beneficial owner, if any, and any persons that are acting in concert therewith; (ii) a representation that the member giving the notice is a Holder of shares carrying voting rights entitled to vote at such meeting, will continue to be a Holder of shares carrying voting rights entitled to vote at such meeting through the date of such meeting and intends to appear in person or by proxy at the meeting to make such nomination or to propose such business; (iii) (A) the class or series and number of shares of the Company which are, directly or indirectly, owned of record and owned beneficially by such member, such beneficial owner and their respective affiliates or associates, or others acting in concert therewith, (B) any option, warrant, convertible security, share appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any security of the Company or with a value derived, in whole or in part, from the value of any security of the Company, or any derivative or synthetic arrangement having the characteristics of a long position in any security of the Company, or any contract, derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially to the ownership of any security of the Company, including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any security of the Company, whether or not such instrument, contract or right shall be subject to settlement in the underlying securities of the Company, through the delivery of cash or other property, or otherwise, and without regard to whether the Holder, the beneficial owner, if any, or any of their respective affiliates or associates, or others acting in concert therewith, may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of securities of the Company (any of the foregoing, a “Derivative Instrument”) directly or indirectly owned beneficially by such member, the beneficial owner, if any, or any of their respective affiliates or associates, or others acting in concert therewith, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith has or pursuant to any proxy, contract, understanding or relationship may acquire any right to vote any security of the Company, (D) any agreement, arrangement, understanding, relationship or otherwise, including any repurchase or similar so-called “stock borrowing” agreement or arrangement, involving such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith, directly or indirectly, the intent, purpose or effect of which may be to mitigate loss to, transfer to or from any such person, in whole or in part, any of the economic consequences of ownership, or reduce the economic risk (of ownership or otherwise) of any security of the Company by, manage the risk of share price changes for, or increase or decrease the voting power of, such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith, with respect to any security of the Company, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of any securities of the Company (any of the foregoing, a “Short Interest”); (E) any rights to dividends on the shares of the Company owned beneficially by such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith, that are separated or separable from the underlying shares of the Company; (F) any proportionate interest in securities of the Company or Derivative Instruments held, directly or indirectly, by a general or limited partnership or similar entity in which such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith, is a general partner or, directly or indirectly, beneficially owns an interest in a general partner or is the manager or managing member or, directly or indirectly, beneficially owns any interest in the manager or managing member of such general or limited partnership or similar entity; (G) any performance-related fees (other than an asset-based fee) that such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith, is entitled to based on any increase or decrease in the value of securities of the Company or Derivative Instruments or Short Interests, if any; (H) any direct or indirect interest, including significant equity interests or any Derivative Instruments or Short Interests in any principal competitor of the Company held by such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith and (I) any direct or indirect interest of such member, such beneficial owner and their respective affiliates or associates, or others acting in concert therewith, in any contract with, or any litigation involving, the Company, any affiliate of the Company or any principal competitor of the Company (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement) (sub-clauses (A) through (I) above of this Article 54.3.1 shall be referred, collectively, as the “Ownership Information”); (iv) if any such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith, intends to engage in a solicitation with respect to a nomination or other business pursuant to this Article 54, a statement disclosing the name of each participant in such solicitation (as defined in Item 4 of Schedule 14A under the Exchange Act) and if involving a nomination a representation that such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert, therewith intends to deliver a proxy statement and form of proxy to holders of at least sixty-seven percent (67%) of the shares carrying voting rights; (v) a certification that each such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith, has complied with all applicable legal requirements in connection with its acquisition of shares or other securities of the Company and such person’s acts or omissions as a member of the Company; (vi) the names and addresses of other members (including beneficial owners) known by any such member, such beneficial owner or any of their respective affiliates or associates, or others acting in concert therewith, to financially or otherwise materially support (it being understood, for example, that statement of an intent to vote for, or delivery of a revocable proxy to such proponent, does not require disclosure under this section, but solicitation of other members by such supporting member would require disclosure under this section) such nomination(s) or proposal(s), and to the extent known the class and number of all shares of the Company’s share capital owned beneficially or of record by, and any other information contemplated by clause (iii) of this Article 54.3.1 with respect to, such other member(s) or other beneficial owner(s); (vii) all information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d- 1(a) of the Exchange Act or an amendment pursuant to Rule 13d-2(a) of the Exchange Act if such a statement were required to be filed under the Exchange Act and the rules and regulations promulgated thereunder by such member, such beneficial owner and their respective affiliates or associates, or others acting in concert therewith, if any; and (viii) any other information relating to such member, such beneficial owner or any of their respective affiliates or associates or others acting in concert therewith, if any, that would be required to be disclosed in a proxy statement and form or proxy or other filings required to be made in connection with solicitations of proxies for, as applicable, the business proposal and/or for the election of Directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder;

 

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54.3.2If the notice includes any business other than a nomination of a Director or Directors that the member proposes to bring before the meeting, a member’s notice must, in addition to the matters set forth in Article 54.3.1, also set forth: (i) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of such member, such beneficial owner and each of their respective affiliates or associates or others acting in concert therewith, if any, in such business; (ii) the text of the business proposal (including the text of any resolutions proposed for consideration and, in the event that such proposal includes a proposal to amend the Articles, the text of the proposed amendment); and (iii) a description of all agreements, arrangements and understandings between such member, such beneficial owner and each of their respective affiliates or associates or others acting in concert therewith, if any, on the one hand, and any other person or persons (including their names), on the other hand, in connection with the business proposal by such member;

 

54.3.3As to each individual, if any, whom the member proposes to nominate for election or re-election to the board of Directors, a member’s notice must, in addition to the matters set forth in Article 54.3.1, also set forth: (i) the name, age, business and residence address of such person; (ii) the principal occupation or employment of such person (present and for the past five (5) years); (iii) the completed and signed questionnaire and representation agreement required by Article 54.9 ; (iv) all information relating to such individual that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of Directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such individual’s written consent to being named in a proxy statement as a nominee) and a written statement of intent to serve as a Director for the full term if elected; and (v) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among such member and beneficial owner, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all biographical and related party transaction and other information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K under the Exchange Act if the member making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a Director or executive officer of such registrant;

 

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54.3.4In addition, to be considered timely, a member’s notice shall further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for determining the Holders entitled to notice of the meeting (or any adjournment, recess, rescheduling or postponement thereof) and as of the date that is ten (10) days prior to the meeting (or any adjournment, recess, rescheduling or postponement thereof), and such update and supplement shall be delivered to the Secretary at the Office not later than (a) the later of (i) ten (10) days after the record date for determining the Holders entitled to notice of the meeting (or any adjournment, recess, rescheduling or postponement thereof) or (ii) the first Public Announcement of the date of notice of such record date in the case of the update and supplement required to be made as of the record date, and (b) not later than eight (8) days prior to the date for the meeting (or any adjournment, recess, rescheduling or postponement thereof) in the case of the update and supplement required to be made as of ten (10) days prior to the meeting or any adjournment, recess, rescheduling or postponement thereof. The obligation to update and supplement as set forth in this Article 54.3.4 or any other Article shall not limit the Company’s rights with respect to any deficiencies in any notice provided by a member, extend any applicable deadlines under these Articles or enable or be deemed to permit a member who has previously submitted notice under these Articles to amend or update any nomination or business proposal or to submit any new nomination or business proposal, including by changing or adding nominees, matters, business and or resolutions proposed to be brought before a meeting of the members. In addition, if the member giving the notice has delivered to the Company a notice relating to the nomination of Directors, the member giving the notice shall deliver to the Company no later than five (5) Business Days prior to the date of the meeting or, if practicable, any adjournment, recess, rescheduling or postponement thereof (or, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned, recessed, rescheduled, or postponed) reasonable evidence that it has complied with the requirements of Rule 14a-19 of the Exchange Act.

 

54.3.5The Company may also, as a condition to any such nomination or business being deemed properly brought before an annual or extraordinary general meeting, require any member giving the notice and the beneficial owner, if any, on whose behalf the nomination or business proposal, as applicable, is made, or any proposed nominee to deliver to the Secretary, within five (5) Business Days of any such request, such other information as may reasonably be required by the Company or its board of Directors, in its sole discretion, to determine (a) the eligibility of such proposed nominee to serve as a Director, (b) whether such nominee qualifies as an “independent director” or “audit committee financial expert” under applicable law, securities exchange rule or regulation, or any publicly disclosed corporate governance guideline or committee charter of the Company or (c) such other information that the board of Directors determines, in its sole discretion, could be material to a reasonable member’s understanding of the independence, or lack thereof, of such nominee. Notwithstanding anything to the contrary, only persons who are nominated in accordance with the procedures set forth in these Articles, including, without limitation, Article 53 and this Article 54, shall be eligible for election as Directors; and

 

54.3.6Notwithstanding anything to the contrary in this Article 54, to the extent the Holder giving the notice is acting solely at the direction of the beneficial owner and not also on its own behalf or in concert with a beneficial owner, and is not an affiliate or associate or such beneficial owner, information otherwise required by clauses (iii), (iv), (v) and (vi) of Article 54.3.1 shall not be required of or with respect to such Holder.

 

54.4Notwithstanding the provisions of these Articles, a member giving the notice shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in these Articles; provided, however, that any references in these Articles to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the separate and additional requirements set forth in these Articles with respect to nominations or proposals as to any other business to be considered.

 

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54.5Only persons who are nominated by members in accordance with the procedures set forth in Article 53 and in this Article 54 shall be eligible to be elected at an annual or extraordinary general meeting of members of the Company to serve as Directors and only such business shall be conducted at a meeting of members as shall have been brought before the meeting in accordance with the procedures set forth in Article 53 and this Article 54. The procedures set forth in Article 53 and in this Article 54 for nomination for the election of Directors by members are in addition to, and not in limitation of, any procedures now in effect or hereafter adopted by or at the direction of the board of Directors or any committee thereof.

 

54.6Notwithstanding the foregoing provisions of Article 53 and this Article 54, if the member giving the notice (or a qualified representative thereof) does not appear at the annual or extraordinary general meeting of members of the Company to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Company.

 

54.7Except as otherwise provided by law, the board of Directors or the chairperson of the meeting shall have the power (a) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in Article 53 and in this Article 54 (including whether the member or beneficial owner, if any, on whose behalf the nomination or business proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such member’s nominee or business proposal in compliance with such member’s representation as required by Article 54.3.1(v)) and (b) if any proposed nomination or business was not made or proposed in compliance with Article 53 and this Article 54, or if any of the information provided to the Company pursuant to in Article 53 or this Article 54 was inaccurate, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted.

 

54.8Nothing in these Articles shall be deemed to affect any rights: (a) of members to request inclusion of business proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act; (b) of the holders of any series of Preferred Shares if and to the extent provided for under law, the memorandum of association or these Articles or (c) of members of the Company to bring business before an extraordinary general meeting pursuant to the valid exercise of power granted to them under Section 178 of the Act. Subject to Rule 14a-8 under the Exchange Act, nothing in these Articles shall be construed to permit any member, or give any member the right, to include or have disseminated or described in the Company’s proxy statement any nomination of Director or Directors or any other business proposal.

 

54.9To be eligible to be a nominee of any member for election or re-election as a Director, a person must deliver (in accordance with the time periods prescribed for delivery of notice under this Article 54) to the Secretary at the Office a written questionnaire with respect to the background and qualification of such individual and the background of any other person or entity on whose behalf, directly or indirectly, the nomination is being made, and a written representation and agreement (in the form of such questionnaire and representation and agreement provided by the Secretary, which form shall be provided by the Secretary upon written request of any member giving the notice and the beneficial owner, if any, on whose behalf the nomination or business proposal, as applicable, is made; provided such written request identifies both the member making such request and the beneficial owner(s), if any, on whose behalf such request is being made) that such individual:

 

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54.9.1(1) is not and will not become a party to: (a) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a Director, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Company; and (b) any Voting Commitment that could limit or interfere with such individual’s ability to comply, if elected as a Director, with such individual’s fiduciary duties under applicable law; and (2) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director that has not been disclosed therein;

 

54.9.2agrees to promptly provide to the Company such other information as the Company may reasonably request; and

 

54.9.3in such individual’s personal capacity and on behalf of any person or entity on whose behalf, directly or indirectly, the nomination is being made, would be in compliance, if elected as a Director, and will comply, with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Company publicly disclosed from time to time.

 

54.10Any individual who is nominated for election to the board of Directors, including pursuant to this Article 54, shall tender an irrevocable resignation in advance of the general meeting. Unless otherwise resolved by the board of Directors, such resignation shall become effective if the board of Directors resolves that (a) the information provided to the Company by an individual who is nominated for election to the board of Directors, including pursuant to Article 53 and this Article 54 or, if applicable, by the member who nominated such individual under Article 53 and this Article 54 and the beneficial owner, if any, on whose behalf the nomination was made, was untrue in any material respect or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (b) such individual or, if applicable, the member who nominated such individual under Article 53 and this Article 54 and the beneficial owner, if any, on whose behalf the nomination was made, shall have breached any representations or obligations owed to the Company under these Articles.

 

55Chairperson of General Meetings

 

55.1The chairperson of the board of Directors or, in his absence, some other Director nominated by the Directors shall preside as chairperson at every general meeting of the Company. If at any general meeting none of such persons shall be present within fifteen minutes after the time appointed for the holding of the meeting and willing to act the Directors present shall elect one of their number to be chairperson of the meeting and, if there is only one Director present and willing to act he shall be chairperson.

 

55.2If at any meeting no Director is willing to act as chairperson or if no Director is present within fifteen minutes after the time appointed for holding the meeting, the members present (whether in person or by proxy) and entitled to vote shall choose one of the members personally present to be chairperson of the meeting.

 

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56Director’s and Auditors’ Right to Attend General Meetings

 

A Director shall be entitled, notwithstanding that he is not a member, to receive notice of and to attend and speak at any general meeting and at any separate meeting of the Holders of any class of shares in the Company. The Auditors shall be entitled to attend any general meeting and to be heard on any part of the business of the meeting which concerns them as the Auditors.

 

57Adjournment of General Meetings

 

57.1The chairperson, with the consent of a meeting at which a quorum is present, may (and shall if so directed by the meeting) adjourn the meeting to such time (or sine die) and to such place (or places where Article 50.4 applies), but no business shall be transacted at any adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place. In addition (and without prejudice to the chairperson’s power to adjourn a meeting conferred by Article 50.6), the chairperson may adjourn the meeting to another time and place (or places where Article 50.4 applies) without such consent if it appears to him that:

 

57.1.1it is likely to be impractical to hold or continue that meeting because of the number of members wishing to attend who are not present;

 

57.1.2the unruly conduct of persons attending the meeting prevents or is likely to prevent the orderly continuation of the business of the meeting; or

 

57.1.3an adjournment is otherwise necessary so that the business of the meeting may be properly conducted.

 

Where a meeting is adjourned sine die, the time and place for the adjourned meeting shall be fixed by the Directors. When a meeting is adjourned for fourteen days or more or sine die, at least seven Clear Days’ notice shall be given specifying the time and place of the adjourned meeting and the general nature of the business to be transacted. Save as aforesaid it shall not be necessary to give any notice of an adjourned meeting.

 

58Amendments to Resolutions

 

If an amendment is proposed to any resolution under consideration but is in good faith ruled out of order by the chairperson of the meeting, the proceedings on the substantive resolution shall not be invalidated by any error in such ruling. With the consent of the chairperson, an amendment may be withdrawn by its proposer before it is voted on. No amendment to a resolution duly proposed as a special resolution may be considered or voted on (other than a mere clerical amendment to correct a patent error). No amendment to a resolution duly proposed as an ordinary resolution may be considered or voted on (other than a mere clerical amendment to correct a patent error) unless either (a) at least forty-eight hours before the time appointed for the holding of the meeting or adjourned meeting at which the ordinary resolution is to be considered, notice of the terms of the amendment and the intention to move it has been delivered by means of an instrument to the Office (or to such other place as may be specified by or on behalf of the Company for that purpose), or received in an electronic communication at such address (if any) for the time being notified by or on behalf of the Company for that purpose or, (b) the chairperson in his absolute discretion decides that the amendment may be considered and voted on.

 

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59Determination of Resolutions

 

59.1At any general meeting a resolution put to the vote of the meeting shall be decided on a poll.

 

60Taking of a Poll

 

60.1A poll shall be taken in such manner as the chairperson directs and he may appoint scrutineers (who need not be members) and fix a time and place for declaring the result of the poll. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.

 

60.2No notice need be given of a poll not taken forthwith if the time and place at which it is to be taken are announced at the meeting in respect of which it is demanded. In any other case at least seven Clear Days’ notice shall be given specifying the time and place at which the poll is to be taken.

 

60.3On a poll taken at a meeting of the Company or a meeting of any class of members of the Company, a member, whether present in person or by proxy, entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.

 

60.4Subject to such requirements and restrictions as the Directors may specify, the Company may permit members to vote by correspondence in advance of a general meeting in respect of one or more of the resolutions proposed at a meeting. Where the Company permits members to vote by correspondence, it shall only count votes cast in advance by correspondence, where such votes are received at the address and before the date and time specified by the Company, provided the date and time is no more than twenty-four hours before the time at which the vote is to be concluded.

 

60.5Subject to such requirements and restrictions as the Directors may specify, the Company may permit members who are not physically present at a meeting to vote by electronic means at the general meeting in respect of one or more of the resolutions proposed at a meeting.

 

61Record Dates and Votes of Members

 

61.1The Directors may determine, in the case of members, that only members whose names are entered on the Register at the close of business on a particular record date chosen by the Directors are entitled to receive notice of a general meeting subject to complying with any minimum periods prescribed by the Act.

 

61.2The Directors may specify in the notice of a general meeting a record date and time by which a person’s name must be entered on the Register in order for that person to have the right to attend or vote at such general meeting. Changes to the Register after the record date and time specified by virtue of this Article 61.2 shall be disregarded in determining the rights of any person to attend or vote at the meeting.

 

61.3Votes may be given either personally or by proxy or a duly authorised representative of a corporate member. Subject to any rights or restrictions for the time being attached to any class or classes of shares, every member present in person or by proxy or by duly authorised representative of a corporate member shall have one vote for every share carrying voting rights of which he is the Holder. On a poll a member entitled to more than one vote need not use all his votes or, if he votes, cast all the votes he uses, in the same way. Voting may also be undertaken by way of such electronic devices as are, for the time being and from time to time, approved by the Directors in their absolute discretion, and Article 61 to Article 63 (inclusive) shall be interpreted accordingly.

 

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62Voting by Joint Holders

 

Where there are joint Holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, in respect of such share shall be accepted to the exclusion of the votes of the other joint Holders; and for this purpose, seniority shall be determined by the order in which the names of the Holders stand in the Register in respect of the share.

 

63Voting by Incapacitated Holders

 

63.1A member of unsound mind, or who has made an enduring power of attorney or in respect of whom an order has been made by any court having jurisdiction (whether in the State or elsewhere) in matters concerning mental disorder, may vote by his committee, receiver, guardian, donee of an enduring power of attorney or other person appointed by that court, and any such committee, receiver, guardian, donee of an enduring power of attorney or other person may vote by proxy.

 

63.2Evidence to the satisfaction of the Directors of the authority of the person claiming to exercise the right to vote shall be deposited at the Office or at such other place as is specified in accordance with these Articles for the deposit of instruments of proxy, not later than the latest time specified by the Directors (subject to the requirements of the Act) and in default the right to vote shall not be exercisable.

 

64Default in Payment of Calls

 

Unless the Directors otherwise determine, no member shall be entitled to vote at any general meeting or any separate meeting of the Holders of any class of shares in the Company, either in person or by proxy, or to exercise any privilege as a member in respect of any share held by him, unless all monies then payable by him in respect of that share have been paid.

 

65Time for Objection to Voting

 

No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is given or tendered, and every vote not disallowed at such meeting shall be valid for all purposes. Any such objection made in due time shall be referred to the chairperson of the meeting, whose decision shall be final and conclusive.

 

66Appointment of Proxies

 

66.1Every member entitled to attend and vote at a general meeting may appoint a proxy or proxies to attend, speak and vote on his behalf, provided that where a member appoints more than one proxy in relation to a general meeting, each proxy must be appointed to exercise the rights attached to a different share or shares held by him. The appointment of a proxy shall be in writing (in electronic form or otherwise) in any usual form or in any other form which the Directors may approve (subject to compliance with any requirements as to form prescribed by the Act and the Exchange Act and the rules and regulations promulgated thereunder). A member shall be entitled to appoint a proxy by electronic means, to an address and in the manner specified by the Company.

 

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66.2The appointment of a proxy, whether in physical form by means of an instrument or in electronic form shall be executed in such manner as may be approved by or on behalf of the Company from time to time. Subject thereto, the appointment of a proxy shall be executed by the appointor or any person duly authorised by the appointor or, if the appointor is a body corporate, executed by a duly authorised person or under its common seal or in any other manner authorised under its constitution. For the purposes of this Article 66, an appointment in electronic form need not comprise writing if the Directors so determine and in such a case, if the Directors so determine, the appointment need not be executed but shall instead be subject to such conditions, and authenticated in such manner, as the Directors may approve.

 

66.3The Directors may, at the expense of the Company, send by post, electronic mail or otherwise, or make available appointments of proxy (with or without a pre-paid method of return) for use at any general meeting, either in blank or nominating any one or more of the Directors or any other persons in the alternative. If for the purpose of any meeting invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the expense of the Company, such invitations shall be issued to all (and not to some only) of the members entitled to be sent a notice of meeting and to vote thereat by proxy but the accidental omission to issue such invitations to, or the non-receipt of such invitations by, any member shall not invalidate the proceedings at any such meeting.

 

67Bodies corporate acting by representatives at meetings

 

67.1Any body corporate which is a member or a proxy for a member may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of members of the Company and the person so authorised shall be entitled to exercise the same powers on behalf of the body corporate which he represents as that body corporate could exercise if it were an individual member of the Company or, where more than one such representative is so authorised, all or any of the rights attached to the shares in respect of which it is so authorised. Where a member appoints more than one representative in relation to a general meeting, each representative must be appointed to exercise the rights attached to a different share or shares held by the member.

 

67.2A body corporate which is an owner of a share may by resolution of its directors or other governing body authorise such person or persons as it thinks fit to act as its representative or representatives at an meeting of the Company or of any class of members of the Company and the person so authorised shall be entitled to exercise the same powers on behalf of the body corporate which they represent as that body corporate could exercise in accordance with Article 3.

 

68Deposit of Proxy

 

68.1The appointment of a proxy together with any power of attorney or other authority under which it is executed or a copy of such authority (or the information contained therein), certified notarially (or in some other way approved by the Directors) shall:

 

68.1.1in the case of an appointment in physical form, be delivered personally or by post to the Office or (at the option of the member) to such other place or places (if any) as may be specified for that purpose in or by way of note to the notice convening the meeting or in the form of proxy sent by or on behalf of the Company in relation to the meeting;

 

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68.1.2in the case of an appointment in electronic form, be received at the number, address or identification number of a member which has been specified by or on behalf of the Company for the purpose of receiving electronic communication;

 

(a)in or by way of note to the notice convening the meeting;

 

(b)in any appointment of proxy sent out by the Company in relation to the meeting; or

 

(c)in any invitation contained in an electronic communication to appoint a proxy issued by the Company in relation to the meeting, provided that in either such case (proxy by instrument or in electronic form):

 

68.2it is so received by the Company no later than the latest time approved by the Directors (subject to the requirements of the Act) and in default shall not be treated as valid;

 

68.3an appointment of proxy relating to more than one meeting (including any adjournment thereof) having once been so received by the Company for the purposes of any meeting shall not require again to be delivered, deposited or received again for the purposes of any subsequent meeting to which it relates; and

 

68.4when two or more valid but differing appointments of a proxy are received in respect of the same shares for use at the same meeting, the one bearing the later date shall be treated as replacing and revoking the other; if the appointments are undated the last one received shall be treated as valid, and if the Company is unable to determine which was the last received, none shall be treated as valid, and a certificate endorsed by the Secretary stating that the appointment is valid or invalid, as the case may be, shall be conclusive for all purposes.

 

68.5The Secretary may accept any appointment of proxy submitted by facsimile, electronic mail or any other means of electronic communication approved by the Directors provided such proxy forms are received, to the satisfaction of the Secretary, in clear and legible form not later than the latest time approved by the Directors (subject to the requirements of the Act), and in default shall not be treated as valid.

 

68.6Without limiting the foregoing, in relation to any Ordinary Shares which are held in uncertificated form, the Directors may, from time to time, permit appointments of proxies to be made by means of an electronic communication (that is, through the use of a secured mechanism to exchange electronic messages in such form and subject to such terms and conditions as may, from time to time, be prescribed by the Directors (subject always to the facilities and requirements of the operator of the relevant system concerned)) and may, in a similar manner, permit supplements to, or amendment or revocations of, any such proxy to be made by like means. The Directors may, in addition, prescribe the method of determining the time at which any such proxy instruction (and/or other message, instruction or notification) is to be treated as received by the Company or such participant. The Directors may treat any such proxy instruction which purports to be, or is expressed to be, sent on behalf of a Holder of an Ordinary Share as sufficient evidence of the authority of the person sending that instruction to send it on behalf of that Holder.

 

68.7For the purposes of this Article 68, delivery of the appointment of proxy by the member shall be to such number (including identification number) or address (including any number or address used for the purpose of communication by way of electronic mail or other electronic communication) or by such other means as is notified by the Directors to the members whether by way of note to the notice conveying the meeting or otherwise. Any member directly or indirectly soliciting proxies from other members must use a proxy card colour other than white, which shall be reserved for exclusive use by the board of Directors and the Company.

 

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69Rights of Proxy

 

69.1A proxy shall have the right to exercise all or any of the rights of his appointor, or (where more than one proxy is appointed) all or any of the rights attached to the shares in respect of which he is appointed the proxy to attend, to speak and to vote, at a general meeting of the Company.

 

69.2The proxy appointment shall also, unless it provides to the contrary, be deemed to confer authority on the proxy to vote or abstain from voting as the proxy thinks fit on any amendment of a resolution and on any procedural motion or resolution put to the meeting to which it relates and on any other business not referred to in the notice of the meeting which may properly come before the meeting to which it relates.

 

70Effect of Proxy Instruments

 

Deposit of an instrument of proxy in respect of a meeting shall not preclude a member from attending and voting at the meeting or at any adjournment thereof. The instrument appointing a proxy shall, unless the contrary is stated therein, be valid as well for any adjournment of the meeting as for the meeting to which it relates.

 

71Effect of Revocation of Proxy or Authorisation

 

A vote given by a proxy or the duly authorised representative of a body corporate shall be valid notwithstanding the previous determination of the authority of the person voting, provided no notice in writing (whether in electronic form or otherwise) shall have been received by the Company at the Office, or other address specified by the Company pursuant to either Article 68.1.1 or Article 68.1.2, at least three hours before the commencement of the meeting or adjourned meeting at which the appointment of proxy is to be used or at which the representative is to act.

 

72Class Meetings

 

72.1All provisions of these Articles relating to general meetings of the Company shall, mutatis mutandis, apply to every separate general meeting of the Holders of any class of shares in the capital of the Company, except that:

 

72.1.1the necessary quorum shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class or, at any adjourned meeting of such Holders, one person present in person or by proxy, whatever the amount of his holding, shall be deemed to constitute a meeting; and

 

72.1.2each Holder of shares of the class shall have one vote in respect of every share of the class held by him.

 

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PART XI — DIRECTORS

 

73Numbers of Directors

 

The number of Directors shall be as the board may determine from time to time, but shall not be more than twenty-one nor less than two unless otherwise determined by the Company in general meeting.

 

74Shareholding Qualification for Directors

 

Directors shall not be required to hold any shares in the capital of the Company by way of qualification.

 

75Remuneration of Directors

 

75.1Each Director shall be paid a fee (which shall be deemed to accrue from day to day) at such rate as may from time to time be determined by the Directors.

 

75.2If any Director, who does not hold executive office, and who performs extra services such as acting as chairperson or deputy chairperson or service on any committee, or who otherwise performs services which in the opinion of the Directors are outside the scope of the ordinary duties of a Director, the Company may further remunerate such Director either by way of salary or otherwise as the Directors may determine.

 

76Expenses of Directors and Use of Company Property

 

76.1The Directors may be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors or general meetings or separate meetings of the Holders of any class of shares or of debentures of the Company or otherwise in connection with the discharge of their duties.

 

76.2The Directors are expressly permitted (as contemplated by Section 228(1)(d) of the Act) to use the Company’s property subject to any conditions as may be set by the Directors from time to time (or as may be set pursuant to any authority delegated pursuant to Part XII of these Articles).

 

77Alternate Directors

 

77.1Any Director may by writing under his hand appoint any person (including another Director) to be his alternate provided always that no such appointment of a person other than a Director as an alternate shall be operative unless and until such appointment shall have been approved by resolution of the Directors.

 

77.2An alternate Director shall be entitled to receive notices of all meetings of the Directors and of all meetings of committees of Directors of which his appointor is a member, to attend and vote at any such meeting at which the Director appointing him is not personally present and, in the absence of his appointor, to exercise all the powers, rights, duties and authorities of his appointor as a Director (other than the right to appoint an alternate hereunder).

 

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77.3Save as otherwise provided in these Articles, an alternate Director shall be deemed for all purposes to be a Director and shall alone be responsible for his own acts and defaults and he shall not be deemed to be the agent of the Director appointing him. The remuneration of any such alternate Director shall be payable out of the remuneration paid to the Director appointing him and shall consist of such portion of the last mentioned remuneration as shall be agreed between the alternate and the Director appointing him.

 

77.4A Director may at any time revoke the appointment of any alternate appointed by him. If a Director shall die or cease to hold the office of Director, the appointment of his alternate shall thereupon cease and determine but, if a Director retires by rotation or otherwise but is re-appointed or deemed to have been re-appointed at the meeting at which he retires, any appointment of an alternate Director made by him which was in force immediately prior to his retirement shall continue after his re-appointment.

 

77.5Any appointment or revocation by a Director under this Article shall be effected by notice in writing given under his hand to the Secretary or deposited at the Office or in any other manner approved by the Directors.

 

PART XII — POWERS OF DIRECTORS

 

78Directors Powers

 

Subject to the provisions of the Act, the Memorandum of Association of the Company and these Articles and to any directions given by special resolution, the business of the Company shall be managed by the Directors who may do all such acts and things and exercise all the powers of the Company as are not by the Act or by these Articles required to be done or exercised by the Company in general meeting. No alteration of the Memorandum of Association of the Company or of these Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. The powers given by this Article shall not be limited by any special power given to the Directors by these Articles and a meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors.

 

79Power to Delegate

 

Without prejudice to the generality of the last preceding Article, the Directors may delegate (with power to sub-delegate) any of their powers and discretions to any managing Director or any Director holding any other executive office or to any committee consisting of one or more Directors together with such other person or persons (if any) as may be appointed to such committee by the Directors provided that a majority of the members of each committee shall at all times consist of Directors and that no resolution of any such committee shall be effective unless a majority of the members of the committee present at the meeting at which it was passed are Directors. The powers or discretions which may be delegated to any such committee shall include (without limitation) any powers and discretions whose exercise involves or may involve the payment of remuneration to, or the conferring of any other benefit on, all or any of the Directors. Any such delegation may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of their own powers, and may be revoked. Subject to any such conditions, the proceedings of a committee with two or more members shall be governed by the provisions of these Articles regulating the proceedings of Directors so far as they are capable of applying provided always that such committees shall have power, to the extent not inconsistent with the authority under which they are established, to set their own quorum and generally to regulate their own procedures.

 

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80Local Management

 

Without prejudice to the generality of the immediately preceding Article, the Directors may establish any committees, local boards or agencies for managing any of the affairs of the Company, either in the State or elsewhere, and may appoint any persons to be members of such committees, local boards or agencies and may fix their remuneration and may delegate to any committee, local board or agent any of the powers, authorities and discretions vested in the Directors with power to sub-delegate and any such appointment or delegation may be made upon such terms and subject to such conditions as the Directors may think fit, and the Directors may remove any person so appointed, and may annul or vary any such delegation, but no person dealing in good faith with any such committee, local board or agency, without notice of any such annulment or variation shall be affected thereby.

 

81Appointment of Attorneys

 

The Directors may from time to time and at any time by power of attorney appoint any company, firm or person or fluctuating body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit. Any such power of attorney may contain such provisions for the protection of persons dealing with any such attorney as the Directors may think fit, and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions vested in him.

 

82Borrowing Powers

 

82.1The Directors may exercise all the powers of the Company to borrow or raise money and to mortgage or charge its undertaking, property, assets and uncalled capital or any part thereof and, subject to the Act, to issue bonds, debentures, debenture stock, loan stock and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party.

 

82.2The Directors may borrow, raise or secure the repayment of such sums in such manner and upon such terms and conditions in all respects as they think fit, and in particular by the issue of bonds, debentures, debenture stock, loan stock, or any mortgage, charge or other security on the undertaking or the whole or any part of the property of the Company (both present and future) including its uncalled capital.

 

Bonds, debentures, debenture stock, loan stock and other securities may be made assignable free from any equities between the Company and the person to whom the same may be issued. Subject to the provisions of the Act any debentures, debenture stock, bonds, loan stock or other securities may be issued at a discount, premium or otherwise, and with any special privileges as to redemption, surrender, drawings, allotment of shares, attending and voting at general meetings of the Company, appointment of Directors or otherwise.

 

PART XIII — APPOINTMENT, NOMINATION, RETIREMENT AND DISQUALIFICATION OF DIRECTORS

 

83Retirement by Rotation

 

83.1At each annual general meeting of the Company, in addition and without prejudice to the provisions of Article 88.2, one-third of the Directors or, if their number is not three or a multiple of three, the number nearest to one-third (or such greater number of Directors as shall be required to comply with the provisions of this Article 83.1) shall retire from office; provided, that each Director shall present himself for re-election at least once every three years.

 

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83.2Subject to the provisions of Article 83.1, the Directors to retire by rotation at any annual general meeting shall be, firstly, those who wish to retire and not be re-appointed to office, and, secondly, those who have been longest in office since their last appointment or re-appointment but, as between persons who became or were last re-appointed Directors on the same day those to retire shall be determined by the Directors, and in absence of agreement among the Directors, by lot. The Directors to retire on each occasion (both as to number and identity) shall be determined by the Directors at the date of the notice convening the annual general meeting. No director shall be required to retire or be relieved from retiring or be retired by reason of any change in the number or identity of the Directors after the date of the notice but before the close of the meeting.

 

83.3A Director who retires at an annual general meeting may, if willing to act, stand for re-election. If he is not re-elected, or deemed to be re-elected or re-appointed pursuant to these Articles, he shall retain office until the meeting appoints someone in his place or, if it does not do so, until the end of the meeting.

 

84Procedure if Insufficient Directors Re-elected

 

If:

 

84.1at the annual general meeting in any year any resolution or resolutions for the election or re-election of the persons eligible for election or re-election as Directors are put to the annual general meeting and lost; and

 

84.2at the end of that meeting the number of Directors is fewer than any minimum number of Directors required under Article 73, all retiring Directors who stood for re-election at that meeting (the “Retiring Directors”) shall be deemed to have been re-elected as Directors and shall remain in office, but the Retiring Directors may only:

 

(a)act for the purpose of filling vacancies and convening general meetings of the Company; and

 

(b)perform such duties as are appropriate to maintain the Company as a going concern and to comply with the Company’s legal and regulatory obligations.

 

85Provisions for General Meeting Convened Under Article 84

 

85.1The Retiring Directors shall convene a general meeting as soon as reasonably practicable following the meeting referred to in Article 84 and they shall retire from office at the conclusion of that meeting if the number of Directors elected or ratified by the Company at that meeting is equal to or more than the minimum number of Directors required under Article 73.

 

85.2If at the end of the meeting convened under Article 84 the number of Directors is fewer than any minimum number of Directors required under Article 73 the provisions of Article 83 and Article 84 shall also apply in respect of such meeting.

 

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86Deemed Re-appointment

 

If the Company, at the meeting at which a Director retires by rotation, does not fill the vacancy the retiring Director shall, if willing to act, be deemed to have been re-appointed, unless at the meeting it is resolved not to fill the vacancy or unless a resolution for the re-election of the Director is put to the meeting and lost.

 

87Eligibility for Appointment

 

No person, other than a Director retiring by rotation or pursuant to Article 88.2, shall be elected or appointed a Director at any general meeting unless he is validly nominated for election at such general meeting in accordance with Articles 53 and 54.

 

88Appointment & Nomination of Directors

 

88.1Subject to Articles 73, 84, 86 and 88.2, each Director shall be elected by an ordinary resolution at an annual general meeting (or an extraordinary general meeting called for that purpose), provided that, if, at the time the Company files its definitive proxy statement for any general meeting of the Company, the number of persons who are at such time validly nominated in accordance with these Articles for election or re-election as Directors (such persons collectively, the “Director Nominees”) exceeds the number of Directors to be elected at such general meeting in accordance with Article 73, 83, 87 and 88 (the “Available Director Positions” and such an election, a “contested election”), then those Director Nominees in number equal to the Available Director Positions who receive the highest number of votes in favour of their election (whether or not such votes in favour represent, with respect to each such Director Nominee, a majority of the votes cast in respect of the election of such Director Nominee) by the members present in person or represented by proxy at such meeting and entitled to vote on the election of Directors shall be appointed as Directors. For clarity, notwithstanding the withdrawal of any nominations for Directors in a contested election subsequent to the time the Company files its definitive proxy statement, the plurality voting provisions of the proviso in this Article 88.1 will continue to apply to the election of Directors at any such meeting.

 

88.2Subject to Article 73, the Directors may appoint a person who is willing to act to be a Director, either to fill a vacancy or as an additional Director. A Director so appointed shall hold office only until the next following annual general meeting and, if not then re-elected, shall vacate office and shall not be taken into account in determining the Directors who are to retire by rotation at the meeting.

 

89Disqualification & Removal of Directors

 

89.1The office of a Director shall be vacated ipso facto if:

 

89.1.1he ceases to be a Director by virtue of any provision of the Act or he becomes disqualified or otherwise prohibited by law from being a Director;

 

89.1.2he becomes restricted pursuant to the provisions of Part 14 of the provisions of the Act;

 

89.1.3he becomes bankrupt or makes any arrangement or composition with his creditors generally;

 

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89.1.4in the opinion of a majority of his co-Directors the health of the Director is such that he can no longer be reasonably regarded as possessing an adequate decision-making capacity so that he may discharge his duties as a Director;

 

89.1.5he resigns his office by notice to the Company or, having been appointed for a fixed term, the term expires or his office as a director is vacated pursuant to Article 83.3;

 

89.1.6he is convicted of an indictable offence and the Directors determine that as a result of such conviction he should cease to be a Director;

 

89.1.7he shall have been absent for more than six consecutive months without permission of the Directors from meetings of the Directors held during that period and the Directors pass a resolution that by reason of such absence he has vacated office; or

 

89.1.8he is required in writing by three-quarters of his co-Directors to resign, but so that if he holds an appointment to an executive office which thereby automatically determines such removal shall be deemed an act of the Company and shall have effect without prejudice to any claim for damages for breach of any contract of service between him and the Company. In calculating the number of Directors who are required to require his resignation, any alternate appointed by him acting in his capacity as such shall be excluded.

 

89.2Upon the termination of a person’s appointment as a Director under these Articles that person’s membership of any committee of the Company shall forthwith automatically terminate without the requirement for notice or other action on the part of the Company.

 

89.3The Company may, by ordinary resolution of which notice has been given in accordance with the provisions of the Act, remove any Director before the expiry of his period of office notwithstanding anything in these Articles or in any agreement between the Company and such Director and may, if thought fit, by ordinary resolution appoint another Director in his stead. The person appointed shall be subject to retirement at the same time as if he had become a Director on the date on which the Director in whose place he is appointed was last appointed a Director. Nothing in this Article 89.3 shall be taken as depriving a person removed hereunder of compensation or damages payable to him in respect of the termination of his appointment as Director or of any appointment terminating with that of Director.

 

PART XIV — DIRECTORS’ OFFICES AND INTERESTS

 

90Executive Offices

 

90.1The Directors may appoint one or more of their body to be the holder of any executive office (except that of auditor) in the Company and may enter into an agreement or arrangement with any such director for his employment by the Company, or any of its subsidiaries or for the provision by him of any services outside the scope of ordinary duties of a director. Any such appointment, agreement or arrangement may be on such terms (including, without limitation, terms as to remuneration) and for such period as the Directors may determine and, without prejudice to the terms of any agreement entered into in any particular case, may at any time revoke any such appointment.

 

90.2A Director holding any such executive office shall receive such remuneration, whether in addition to or in substitution for his ordinary remuneration as a Director and whether by way of salary, commission, participation in profits or otherwise or partly in one way and partly in another, as the Directors may determine.

 

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90.3Any appointment of a Director to an executive office shall automatically terminate if he ceases to be a Director but without prejudice to any rights or claims which he may have against the Company by reason of such termination.

 

91Directors’ Interests

 

91.1Subject to the provisions of the Act and provided that he has disclosed to the Directors the nature and extent of any material interest of his, a Director notwithstanding his office:

 

91.1.1may be a party to, or otherwise interested in, any transaction or arrangement with the Company or any subsidiary or associated company thereof or in which the Company or any subsidiary or associated company thereof is otherwise interested;

 

91.1.2may hold any other office or place of profit under the Company (otherwise than as auditor) and may act by himself or his firm in a professional capacity for the Company and he and / or his firm shall be entitled to remuneration for professional services as if he were not a director on such terms as the Directors shall arrange;

 

91.1.3may be a director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any body corporate promoted by the Company or in which the Company or any subsidiary or associated company thereof is otherwise interested; and

 

91.1.4shall not, by reason of his office, be accountable to the Company for any benefit which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate unless the Company otherwise directs and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit.

 

91.2Subject to the provisions of the Act, no Director or intending Director shall be disqualified by his office from contracting with the Company either as vendor, purchaser or otherwise, nor shall any such contract or any contract or arrangement entered into by or on behalf of the other company in which any Director shall be in any way interested be avoided nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relationship thereby established. The nature of a Director’s interest must be declared by him at the meeting of the Directors at which the question of entering into the contract or arrangement is first taken into consideration, or if the Director was not at the date of that meeting interested in the proposed contract or arrangement, at the next meeting of the Directors held after he became so interested, and in a case where the Director becomes interested in a contract or arrangement after it is made at the first meeting of the Directors held after he becomes so interested.

 

91.3A copy of every declaration made and notice given under this Article shall be entered within three days after the making or giving thereof in a book kept for this purpose. Such book shall be open for inspection without charge by any Director, Secretary, Auditor or member of the Company at the Office and shall be produced at every general meeting of the Company and at any meeting of the Directors if any Director so requests in sufficient time to enable the book to be available at the meeting.

 

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91.4For the purposes of this Article:

 

91.4.1a general notice given to the Directors that a Director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the Director has an interest in any such transaction of the nature and extent so specified; and

 

91.4.2an interest of which a Director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his.

 

92Restriction on Director’s Voting

 

92.1Save as otherwise provided by these Articles, a Director shall not vote at a meeting of the Directors or a committee of Directors on any resolution concerning a matter in which he has (to his knowledge), directly or indirectly, an interest which is material or a duty which, in a material way, conflicts or may conflict with the interests of the Company. A Director shall not be counted in the quorum present at a meeting in relation to any such resolution on which he is not entitled to vote.

 

92.2Notwithstanding the provisions of Article 92.1, a Director shall (in the absence of some material interest other than those indicated below) be entitled to vote (and be counted in the quorum) in respect of any resolutions concerning any of the following matters, namely:

 

92.2.1the giving of any security, guarantee or indemnity to him in respect of money lent by him or any other person at the request of or for the benefit of the Company or any of its subsidiary or associated companies or obligations incurred by him or any other person at the request of or for the benefit of the Company or any of its subsidiary or associated companies;

 

92.2.2the giving of any security, guarantee or indemnity to a third party in respect of a debt or obligation of the Company or any of its subsidiary or associated companies for which he himself has assumed responsibility in whole or in part, and whether alone or jointly with others, under a guarantee or indemnity or by the giving of security;

 

92.2.3any proposal concerning any offer of shares or debentures or other securities of or by the Company or any of its subsidiary or associated companies for subscription, purchase or exchange in which offer he is entitled to participate as a holder of securities or is or is to be interested as a participant in the underwriting or sub-underwriting thereof;

 

92.2.4any proposal relating to any other company in which he is interested, directly or indirectly and whether as an officer or shareholder or otherwise howsoever, provided that he is not the holder of, nor has an interest (within the meaning of the Act) in, one per cent. or more of (x) the issued shares of any class of the equity share capital of such company, or (y) the voting rights available to members of such company (or of a third company through which his interest is derived), any such interest being deemed for the purposes of this Article to be a material interest in all circumstances;

 

92.2.5any proposal relating to the adoption, modification or operation of a pension or superannuation fund or retirement, death or disability benefits scheme under which he may benefit in a manner similar to the benefits awarded to other employees to whom the scheme relates or which has been approved by or is subject to and conditional upon approval for taxation purposes by the appropriate Revenue authorities;

 

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92.2.6any proposal relating to the adoption, modification or operation of any scheme for enabling employees (including full time executive Directors) of the Company and / or any subsidiary or associated company thereof to acquire shares in the Company or any of its subsidiary or associated companies under which he benefits or may benefit in a manner similar to the benefits awarded to other employees to whom the scheme relates or which has been approved by or is subject to and is conditional upon approval for taxation purposes by the appropriate Revenue authorities; or

 

92.2.7any proposal concerning the giving of any indemnity pursuant to Article 131 or concerning insurance which the Company proposes to maintain or purchase for the benefit of Directors or for the benefit of persons including Directors.

 

92.3Where proposals are under consideration concerning the appointment (including fixing or varying the terms of appointment) of two or more Directors to offices or employments with the Company or any company in which the Company is interested, such proposals may be divided and considered in relation to each Director separately and in such case each of the Directors concerned (if not debarred from voting under Article 92.2.4) shall be entitled to vote (and be counted in the quorum) in respect of each resolution except that concerning his own appointment.

 

92.4If a question arises at a meeting of Directors or of a committee of Directors as to the materiality of a Director’s interest or as to the right of any Director to vote and such question is not resolved by his voluntarily agreeing to abstain from voting, such question may, before the conclusion of the meeting, be referred to the chairperson of the meeting and his ruling in relation to any Director other than himself shall be final and conclusive. In relation to the chairperson, such question may be resolved by a resolution of a majority of the Directors (other than the chairperson) present at the meeting at which the question first arises.

 

92.5The Company by ordinary resolution may suspend or relax the provisions of this Article to any extent or ratify any transaction not duly authorised by reason of a contravention of this Article.

 

92.6For the purposes of this Article, an interest of a person who is connected with a Director, within the meaning of Section 220 of the Act shall be treated as interest of the Director and, in relation to an alternate Director, an interest of his appointor shall be treated as an interest of the alternate Director. A shareholding in, or any interest in debentures or other securities of, the Company of a Director, or of a person who is connected with a Director within the meaning of Section 220 of the Act shall not be deemed to be a material interest for the purposes of this Article.

 

92.7Nothing in Section 228(1)(e) of the Act shall restrict a Director from entering into any commitment which has been approved by the Directors (or which has been approved pursuant to any authority delegated by the Directors in accordance with Part XII of these Articles). It shall be the duty of each Director to obtain prior approval of the Directors before entering into any commitment permitted by Section 228 of the Act.

 

93Entitlement to Grant Pensions and Purchase Insurance

 

93.1The Directors may provide benefits, whether by way of pensions, gratuities or otherwise, for any Director, former Director or other officer or former officer of the Company or to any person who holds or has held any employment with the Company or with any body corporate which is or has been a subsidiary or associated company of the Company or a predecessor in business of the Company or of any such subsidiary or associated company and to any member of his family or any person who is or was dependent on him and may set up, establish, support, alter, maintain and continue any scheme for providing all or any of such benefits and for such purposes any Director may accordingly be, become or remain a member of, or rejoin any scheme and receive or retain for his own benefit all benefits to which he may be or become entitled thereunder. The Directors may pay out of the funds of the Company any premiums, contributions or sums payable by the Company under the provisions of any such scheme in respect of any of the persons or class of persons above referred to who are or may be or become members thereof.

 

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93.2Subject to the provisions of Article 131, the Directors shall have the power to purchase and maintain insurance for or for the benefit of any persons who are or were at any time, directors, officers, or employees of the Company or of any other company which is its holding company or in which the Company or such holding company has any interest whether direct or indirect or which is in any way allied to or associated with the Company, or of any subsidiary undertaking of the Company or any such other company, or who are or were at any time trustees of any pension fund in which employees of the Company, or any such other company or such subsidiary undertaking are interested, including (without prejudice to the generality of the foregoing) insurance against any liability incurred by such persons in respect of any act or omission when in the actual or purported execution or discharge of their duties or in the exercise or purported exercise of their powers or otherwise in relation to their duties, powers or offices in relation to the Company or any such other company, subsidiary undertaking or pension fund.

 

PART XV — PROCEEDINGS OF DIRECTORS

 

94Regulation and Convening of Directors’ Meetings

 

94.1Subject to the provisions of these Articles, the Directors may regulate their proceedings as they think fit. A Director may, and the Secretary at the request of a Director shall, call a meeting of the Directors. Any Director may waive notice of any meeting and any such waiver may be retrospective. If the Directors so resolve, it shall not be necessary to give notice of a meeting of Directors to any Director or alternate Director who, being a resident of the State, is for the time being absent from the State.

 

94.2Notice of a meeting of the Directors shall be deemed to be duly given to a Director if it is given to him personally or by word of mouth or sent in writing by delivery, post, facsimile, electronic mail or any other means of communication approved by the Directors to him at his last known address or any other address given by him to the Company for this purpose.

 

95Quorum for Directors’ Meetings

 

95.1The quorum for the transaction of the business of the Directors may be fixed by the Directors and unless so fixed at any other number shall be two. A person who holds office only as an alternate Director shall, if his appointor is not present, be counted in the quorum but, notwithstanding that such person may act as alternate Director for more than one Director, he shall not count as more than one for the purposes of determining whether a quorum is present.

 

95.2The continuing Directors or a sole Director may act notwithstanding any vacancies in their number but, if the number of Directors is less than the number fixed as the quorum, they may act only for the purpose of filling vacancies or of calling a general meeting.

 

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96Voting at Directors’ Meetings

 

96.1Questions arising at any meeting of Directors shall be decided by a majority of votes. Each Director present and voting shall have one vote. Where there is an equality of votes, the chairperson of the meeting shall have a second or casting vote. A Director who is also an alternate Director for one or more Directors shall be entitled, in the absence of any such appointor from a meeting, to a separate vote at such meeting on behalf of each such appointor in addition to his own vote.

 

96.2Each Director present at a meeting of Directors shall, in addition to his own vote, be entitled to one vote in respect of each other Director not present at the meeting who shall have authorised him (the “Authorised Director”) in respect of such meeting to vote for such other Director in the absence of such other Director, provided that:

 

96.2.1no Authorised Director shall be entitled to any vote at a meeting on behalf of another Director pursuant to any such authority if the other Director shall have appointed an alternate Director and that alternate Director is present at the meeting at which the Authorised Director proposes to vote pursuant to the provisions of such authority;

 

96.2.2any such authority may specifically provide that, in the absence of the Authorised Director from any meeting, his alternate, if present at the meeting, may exercise the authority instead of the Authorised Director and unless such provision is so made, no alternate Director of the Authorised Director shall be entitled to exercise any such authority on his behalf; and

 

96.2.3if, pursuant to any of the provisions of this Article, an alternate Director shall become authorised to exercise any vote, he shall not be entitled to authorise any person other than himself to exercise such vote.

 

96.3Any such authority may relate generally to all meetings of the Directors or to any specified meeting or meetings and must be in writing and may be sent by delivery, post, facsimile, electronic mail or any other means of communication approved by the Directors. The authority must be delivered to the Secretary for filing prior to or must be produced at the first meeting at which a vote is to be cast pursuant thereto.

 

97Telecommunication Meetings

 

Any Director or alternate Director may participate in a meeting of the Directors or any committee of the Directors by means of conference telephone, video link or other telecommunications equipment by means of which all persons participating in the meeting can hear each other speak and such participation in a meeting shall constitute presence in person at the meeting.

 

98Chairperson of Meetings of Directors

 

Subject to any appointment to the office of chairpersonmade pursuant to these Articles, the Directors may elect a chairperson of their meetings and determine the period for which he is to hold office, but if no such chairperson is elected, or, if at any meeting the chairperson is unwilling to act or is not present within five minutes after the time appointed for holding the same, the Directors present may choose one of their number to be chairperson of the meeting.

 

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99Validity of Acts of Directors

 

All acts done by any meeting of the Directors or of a committee of Directors or by any person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified from holding office or had vacated office, be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director and had been entitled to vote.

 

100Directors’ Resolutions or other Documents in Writing

 

A resolution or other document in writing signed by all the Directors entitled to receive notice of a meeting of Directors or of a committee of Directors shall be as valid as if it had been passed at a meeting of Directors or (as the case may be) a committee of Directors duly convened and held and may consist of several documents in the like form each signed by one or more Directors and such resolution or other document signed by a Director may be delivered or transmitted to the Company (unless the Directors shall otherwise determine either generally or in any specific case) by post, facsimile, electronic mail or other means approved by the Directors, provided the contents of such resolution or other document, including the actual signature thereto, are, to the satisfaction of the Secretary, clear and visible therein. A resolution or other document(s) signed by an alternate Director need not also be signed by his appointor and, if it is signed by a Director who has appointed an alternate Director, it need not be signed by the alternate Director in that capacity.

 

PART XVI — THE SECRETARY

 

101Appointment of Secretary

 

The Secretary shall be appointed by the Directors for such term, at such remuneration, and upon such conditions as they may think fit and any Secretary so appointed may be removed by them and a new Secretary appointed in his place.

 

102Assistant Secretary

 

The Directors, at any time and from time to time, may appoint one or more assistant or deputy secretaries and any provision in these Articles requiring or authorising a thing to be done or determination to be made by or to the Secretary shall be satisfied by it being done by or to or made by any such assistant or deputy secretary.

 

PART XVII — SEALS OF THE COMPANY

 

103Use of Seals

 

The Directors shall ensure that the common seal of the Company and any official securities seal kept pursuant to the Act shall only be used by the authority of the Directors or of a committee authorised by the Directors.

 

 

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104Signature of Sealed Instruments

 

104.1Every instrument to which either the common seal of the Company or any official securities seal kept pursuant to the Act shall be affixed shall be signed by a Director and shall also be signed by the Secretary or by a second Director or by some other person appointed by the Directors for the purpose save that as regards any certificates for shares or debentures or other securities of the Company the Directors may by resolution determine that such signatures or either of them shall be dispensed with, or be printed thereon or affixed thereto by some method or system of mechanical signature provided that in any such case the certificate to be sealed shall have been approved for sealing by the Secretary or by the registrar of the Company or by the Auditors or by some other person appointed by the Directors for this purpose in writing (and, for the avoidance of doubt, it is hereby declared that it shall be sufficient for approval to be given and / or evidenced either in such manner (if any) as may be approved by or on behalf of the Directors or by having certificates initialled before sealing or by having certificates presented for sealing accompanied by a list thereof which has been initialled in each case by or on behalf of the Directors).

 

104.2For the purposes of this Article 104, any instrument in electronic form to which the seal is required to be affixed, shall be sealed by means of an advanced electronic signature based on a qualified certificate of a Director and the Secretary or of a second Director or by some other person appointed by the Directors for the purpose.

 

105Seal for Use Abroad

 

The Company may exercise the powers conferred by the Act with regard to having an official seal for use abroad, and such powers shall be vested in the Directors.

 

PART XVIII — DIVIDENDS AND RESERVES

 

106Declaration of Dividends

 

Subject to the provisions of the Act, the Company may by ordinary resolution declare dividends in accordance with the respective rights of the members, but no dividend shall exceed the amount recommended by the Directors.

 

107Interim and Fixed Dividends

 

Subject to the provisions of the Act the Directors may from time to time pay to the members interim dividends if it appears to them that they are justified by the profits of the Company available for distribution. If the share capital is divided into different classes, the Directors may pay interim dividends on shares which confer deferred or non-preferred rights with regard to dividend as well as on shares which confer preferential rights with regard to dividend, but subject always to any restrictions for the time being in force (whether under these Articles, under the terms of issue of any shares or under any agreement to which the Company is a party, or otherwise howsoever), relating to the application, or the priority of application, of the Company’s profits available for distribution or to the declaration, or as the case may be the payment of dividends by the Company and no interim dividend shall be paid on shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrears. Subject as aforesaid, the Directors may also pay at intervals settled by them any dividend payable at a fixed rate if it appears to them that the profits available for distribution justify the payment. Provided the Directors act in good faith they shall not incur any liability to the Holders of shares conferring preferred rights for any loss they may suffer by the lawful payment of an interim dividend on any shares having deferred or non-preferred rights.

 

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108Reserves

 

The Directors may before recommending any dividend, whether preferential or otherwise, carry to reserve out of the profits of the Company such sums as they think proper. All sums standing to a reserve may be applied from time to time, at the discretion of the Directors for any purpose to which the profits of the Company may be properly applied and pending such application may, at the like discretion, either be employed in the business of the Company or invested in such investments as the Directors may lawfully determine. The Directors may divide the reserve into such special funds as they think fit and may consolidate into one fund any special funds or any parts of any special funds into which the reserve may have been divided as they may lawfully determine. Any sum which the Directors may elect to carry to reserve out of the unrealised profits of the Company shall not be mixed with any reserve to which profits available for distribution have been carried. The Directors may also, without placing the same to reserve, carry forward any profits which they may think it prudent not to divide.

 

109Scrip Dividends

 

109.1The Directors may, subject to approval by the Company by ordinary resolution (and provided that an adequate number of unissued Ordinary Shares is available for the purpose), prior to or contemporaneously with the announcement of the dividend in question, offer Holders of Ordinary Shares the right to elect to receive in lieu of such dividend (or part thereof) an allotment of additional Ordinary Shares credited as fully paid. In any such case, the following provisions shall apply:

 

109.1.1Any such resolution of the Company may specify that the said right of election shall apply to a particular dividend or dividends or to all or any dividends falling to be declared or paid during a specified period, provided that such period shall expire no later than fifteen months after the date on which such resolution is passed or on the date of the holding of the next following annual general meeting, whichever is the first to occur, unless previously renewed, varied or revoked by the Company in general meeting.

 

109.1.2The basis of allotment shall be determined by the Directors so that, as nearly as may be considered convenient but subject always to the Act the value of the additional Ordinary Shares to be allotted in lieu of any amount of cash dividend shall equal the cash amount of the dividend foregone (disregarding any tax credit attaching to the dividend). The said basis of allotment may, at the absolute discretion of the Directors, be exclusive of any fractional entitlements or, alternatively, may provide for a rounding up to the nearest number of Ordinary Shares, notwithstanding that the value thereof (as determined in accordance with Article 109.1.3) may be greater than the cash amount of the dividend.

 

109.1.3The value of the Ordinary Shares shall be determined by the Directors by reference to the average of the Reference Prices of Ordinary Shares for the five Business Days commencing on the date on which the Ordinary Shares are quoted ex the relevant dividend or, in the event that this shall, in the opinion of the Directors, be impracticable, in such manner as the Directors may determine, taking into account, if appropriate, the price at which any recent dealing in the shares of the Company took place. For the purposes of this Article, the expression “Reference Price” shall mean, in respect of any Business Day on which there shall be a dealing on the New York Stock Exchange or London Stock Exchange (as the Directors may determine) in respect of Ordinary Shares, the closing quotation price in respect of such shares for such Business Day as published in the London Stock Exchange Daily Official List or by the New York Stock Exchange (or any successor to them) as appropriate and, in respect of any Business Day on which there shall be no such dealing, the price which is equal to (x) the mid-point between the high and low market guide prices in respect of such shares for such Business Day as published in the London Stock Exchange Daily Official List or by the New York Stock Exchange (or any successor to them) as appropriate, or (y) if there shall be only one such market guide price so published, the market guide price so published.

 

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109.1.4The Directors shall give notice in writing to the Holders of Ordinary Shares of any right of election afforded to them and shall send with or following such notice forms of election and specify the procedure to be followed (including, if so permitted, procedures for the retraction of an election), the place or places at which and the latest dates and times by which duly completed forms of election must be lodged in order to be effective (such dates or times to be different only to the extent that it is necessary to allow for the transmission of information to Dublin or for time differences between different places at which such forms may be lodged). Any such notice may be given prior to the general meeting at which approval for the right of election is to be given and subject to such approval being given. Any election by a member will be binding on every successor in title to the shares in respect of which the election is made. The Directors may also issue forms under which Holders of Ordinary Shares may elect to receive Ordinary Shares instead of cash both in respect of future dividends not yet declared or resolved (and accordingly in respect of which the basis of allotment shall not have been determined) and dividends already declared and resolved.

 

109.1.5The cash dividend (or that part of the dividend in respect of which a right of election has been accorded) shall not be payable on any Ordinary Shares in respect of which the share election has been duly exercised (the “Elected Ordinary Shares”) and in lieu thereof additional Ordinary Shares (but not any fraction of any Ordinary Share) shall be allotted to the holders of the Elected Ordinary Shares on the basis of allotment determined as aforesaid and for such purpose the Directors shall capitalise, out of such of the sums standing to the credit of reserves (including any share premium account or undenominated capital or capital redemption reserve fund) or profit and loss account, whether or not the same is available for distribution as the Directors may determine, a sum equal to the aggregate nominal amount of additional Ordinary Shares to be allotted and premium (if any) on such basis and apply the same in paying up in full the appropriate number of unissued Ordinary Shares for allotment and distribution to and amongst the holders of the Elected Ordinary Shares on such basis. A resolution of the Directors capitalising any part of the reserves or profits hereinbefore mentioned shall have the same effect as if such capitalisation had been declared by a resolution passed at a general meeting of the Company.

 

109.1.6The additional Ordinary Shares so allotted will rank pari passu in all respects with the fully paid Ordinary Shares then in issue save only as regards any rights attaching to such Ordinary Shares by reference to a record date prior to the date of allotment.

 

109.1.7The Directors may do all acts and things considered necessary or expedient to give effect to any such capitalisation with full power for the Directors to make such provisions as they think fit in the case of shares becoming distributable in fractions (including, without limitation, provisions whereby, in whole or in part, the fractional entitlements are disregarded and the benefit of fractional entitlements accrues to the Company rather than to the members concerned). The Directors may authorise any person to enter on behalf of all the members interested into an agreement with the Company providing for such capitalisation and matters incidental thereto and any agreement made under such authority shall be effective and binding on all concerned. The Directors may, in their absolute discretion if it shall in their opinion seem expedient, suspend or terminate (whether temporarily or otherwise) such right to elect and may do such acts and things considered necessary or expedient with regard to, or in order to effect, any such suspension or termination.

 

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109.1.8Notwithstanding the foregoing, the Directors may at any time prior to payment of the relevant dividend determine, if it appears to them desirable to do so because of a change in circumstances, that the dividend shall be payable wholly in cash and if they so determine, all elections made shall be disregarded. The relevant dividend shall, in any event, be payable wholly in cash if the Ordinary Shares cease to be listed or dealt in on the Stock Exchange at any time prior to the due date of issue of the additional Ordinary Shares or if such listing is suspended and not reinstated at least three Business Days prior to the date immediately preceding the due date of such issue.

 

109.1.9Notwithstanding anything to the contrary in this Article, the Directors may make such exclusions from any offer of rights of election to Holders of Ordinary Shares as they may think necessary or expedient in the light of any legal, regulatory or practical problems under the laws or regulations of any territory or jurisdiction or the requirements of any regulatory body or stock exchange and may in particular, on any occasion, determine that rights of election shall not be offered to any Holders of Ordinary Shares who are citizens or residents of any territory where the making or publication of an offer of rights of election or any exercise of rights of election or any purported acceptance of rights of election would or might be unlawful and in such event the provisions aforesaid shall be read and construed subject to such determination.

 

110Apportionment of Dividends

 

Except as otherwise provided by the rights attached to shares, all dividends shall be declared and paid according to the amounts paid up on the shares on which the dividend is paid. Subject as aforesaid, all dividends shall be apportioned and paid proportionately to the amounts paid or credited as paid on the shares during any portion or portions of the period in respect of which the dividend is paid but, if any share is issued on terms providing that it shall rank for dividend as from a particular date, such share shall rank for dividend accordingly. For the purposes of this Article, no amount paid on a share in advance of calls shall be treated as paid on a share.

 

111Deductions from Dividends

 

The Directors may deduct from any dividend or other monies payable to any member in respect of a share any monies presently payable by him to the Company in respect of that share.

 

112Dividends in Specie

 

A general meeting declaring a dividend may, upon the recommendation of the Directors, direct that it shall be satisfied wholly or partly by the distribution of assets (and, in particular, of paid up shares, debentures or debenture stock of any other company or in any one or more of such ways) and the Directors shall give effect to such resolution. Where any difficulty arises in regard to the distribution, the Directors may settle the same as they think expedient, and in particular may issue fractional certificates and fix the value for distribution of such specific assets or any part thereof, in order to adjust the rights of all the parties, and may determine that cash payments shall be made to any members upon the footing of the value so fixed and may vest any such specific assets in trustees.

 

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113Payment of Dividends and Other Monies

 

113.1Any dividend or other monies payable in cash in respect of any share (whether in USD or in any other currency) may be paid by such method as the Directors in their absolute discretion may decide, at the risk of the Holder or Holders entitled thereto, to the registered address of the Holder or, where there are joint Holders, to the registered address of that one of the joint Holders who is first named on the Register or to such person and to such address as the Holder or joint Holders may in writing direct. Every such payment shall be made payable to the order of the person to whom it is sent and such payment shall be a good discharge to the Company. The Directors may also, in circumstances which they consider appropriate, arrange for payment of dividends or any other payments to any particular Holder or Holders by electronic funds transfer, bank transfer or by any other method selected by the Directors from time to time and in such event the debiting of the Company’s account in respect of the appropriate amount shall be deemed a good discharge of the Company’s obligations in respect of any payment made by such methods.

 

113.2If payments are to be made by electronic transfer to an account (of a type approved by the Directors) nominated by a Holder or Holders but no such account is nominated by the Holder or Holders, or an electronic transfer into a nominated account is rejected or refunded, the Company may credit the amount payable to an account of the Company until the Holder or Holders nominates a valid account.

 

113.3An amount credited to an account under Article 113.2 is to be treated as having been paid to the Holder or Holders at the time it is credited to that account. The Company will not be a trustee of the money and no interest will accrue on the money.

 

113.4Payment by electronic transfer, cheque or warrant, or in any other way, is made at the risk of the person who is entitled to the money. The Company is treated as having paid a dividend if a payment using electronic or other means approved by the Directors is made in accordance with instructions given by the Company or if such a cheque or warrant is cleared. The Company will not be responsible for a payment which is lost or delayed.

 

113.5In respect of shares in uncertificated form, where the Company is authorised to do so by or on behalf of the Holder or Holders in such manner as the Company shall from time to time consider sufficient, the Company may also pay any such dividend interest or other moneys by means of the relevant system concerned (subject always to the facilities and requirements of that relevant system). Every such payment made by means of the relevant system shall be made in such manner as may be consistent with the facilities and requirements of the relevant system concerned. Without prejudice to the generality of the foregoing, in respect of shares in uncertificated form, such payment may include the sending by the Company or by any person on its behalf of an instruction to the operator of the relevant system to credit the cash memorandum account of the Holder or Holders.

 

113.6Any dividend or other payment to any particular Holder or Holders may be paid in such currency or currencies, other than Euro, as may from time to time be determined by the Directors and at the sole risk of the person or persons entitled thereto, and any such payment shall be made in accordance with such rules and regulations (including, without limitation, in relation to the conversion rate or rates) as may be determined by the Directors in relation thereto.

 

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113.7Any joint Holder or other person jointly entitled to a share as aforesaid may give effectual receipts for any dividend or other monies payable on or in respect of the share.

 

113.8If on at least three consecutive occasions, cheques, warrants, or transfers in respect of payment of dividends or other monies payable on or in respect of any share have been despatched in accordance with the provisions of this Article but have been returned undelivered or left uncashed during the periods for which they were valid, the Company need not thereafter despatch further cheques, warrants or transfers in payment of dividends or other monies payable on or in respect of the share in question until the member or other person entitled thereto shall have communicated with the Company and supplied in writing to the Secretary an address or account details as appropriate for the purpose.

 

114Dividends Not to Bear Interest

 

No dividend or other monies payable in respect of a share shall bear interest against the Company unless otherwise provided by the rights attached to the share.

 

115Payment to Holders on a Particular Date

 

Any resolution declaring a dividend on shares of any class, whether a resolution of the Company in general meeting or a resolution of the Directors, may specify that the same may be payable to the persons registered as the Holders of such shares at the close of business on a particular date, notwithstanding that it may be a date prior to that on which the resolution is passed, and thereupon the dividend shall be payable to them in accordance with their respective holdings so registered, but without prejudice to the rights inter se in respect of such dividend of transferors and transferees of any such shares. The provisions of this Article shall mutatis mutandis apply to capitalisations to be effected in pursuance of these Articles (including, without limitation, pursuant to the provisions of Article 109).

 

116Unclaimed Dividends

 

Any dividend which has remained unclaimed for twelve years from the date the dividend became due for payment shall, if the Directors so resolve, be forfeited and cease to remain owing by the Company. The payment by the Directors of any unclaimed dividend or other monies payable in respect of a share into a separate account shall not constitute the Company a trustee in respect thereof. Any dividend, interest or other sum payable which remains unclaimed for one year after having been declared may be invested or otherwise made use of by the Directors for the benefit of the Company until claimed.

 

PART XIX — POWER TO CAPITALISE

 

117Capitalisation of Non-Distributable Profits and Reserves

 

117.1Subject to the Act, the board may with the authority of an ordinary resolution of the Company:

 

117.1.1subject to the provisions of this Article, resolve to capitalise any of the Company’s profits available for distribution and/or any sum, for the time being, standing to the credit of any of the Company’s other reserves, reserve accounts or funds, by whatever name called and whether distributable or non-distributable (including, without limitation, the share premium account, the undenominated capital account, any unrealised revaluation reserves, any capital redemption reserves and any merger reserves), if any; (b) appropriate the sum resolved to be capitalised to the members or any class of members on the record date specified in the relevant board resolution who, unless provided otherwise, would have been entitled to it if it were distributed by way of dividend and in the same proportions;

 

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117.1.2apply that sum on behalf of the members or the members of any class either in or towards paying up the amounts, if any, for the time being unpaid on any shares held by them respectively, or in paying up in full shares, debentures or other obligations of the Company of a nominal value or nominal value plus share premium, as the case may be, equal to the sum capitalised, but the share premium account, the undenominated capital account, any revaluation reserves, any capital redemption reserves, any merger reserves and any profits which are not available for distribution may, for the purposes of this Article, only be applied in paying up in full unissued shares to be allotted to the members or the members of any class of a nominal value or nominal value plus share premium equal to the sum capitalised;

 

117.1.3allot the shares, debentures or other obligations credited as fully paid to those members or members of any class, or as they may direct, in those proportions, or partly in one way and partly in the other;

 

117.1.4where shares or debentures become, or would otherwise become, distributable under this Article in fractions, make such provision as they think fit for any fractional entitlements including without limitation authorising their sale and transfer to any person, resolving that the distribution be made as nearly as practicable in the correct proportion but not exactly so, ignoring fractions altogether or resolving that cash payments be made to any members in order to adjust the rights of all parties;

 

117.1.5authorise any person to enter into an agreement with the Company on behalf of all the members or members of any class concerned providing for either:

 

(a)the allotment to the members or members of any class respectively, credited as fully paid, of any shares, debentures or other obligations to which they are entitled on the capitalisation; or

 

(b)the payment up by the Company on behalf of the members or members of any class of the amounts, or any part of the amounts, remaining unpaid on their existing shares by the application of their respective proportions of the sum resolved to be capitalised, and any agreement made under that authority shall be binding on all such members or members of any class, as the case may be; and

 

117.1.6generally do all acts and things required to give effect to the ordinary resolution.

 

118Implementation of Capitalisation Issues

 

Whenever such a resolution is passed in pursuance of the preceding Article, the Directors shall make all appropriations and applications of the undivided profits resolved to be capitalised thereby and all allotments and issues of fully paid shares or debentures, if any, and generally shall do all acts and things required to give effect thereto with full power to the Directors to make such provisions as they shall think fit for the case of shares or debentures becoming distributable in fractions (and, in particular, without prejudice to the generality of the foregoing, either to disregard such fractions or to sell the shares or debentures represented by such fractions and distribute the net proceeds of such sale to and for the benefit of the Company and / or to or for the benefit of the members otherwise entitled to such fractions in due proportions) and also to authorise any person to enter on behalf of all the members concerned into an agreement with the Company providing for the allotment to them respectively, credited as fully paid up, of any further shares or debentures to which they may become entitled on such capitalisation or, as the case may require, for the payment up by the application thereto of their respective proportions of the profits resolved to be capitalised of the amounts remaining unpaid on their existing shares and any agreement made under such authority shall be effective and binding on all such members.

 

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PART XX — NOTICES

 

119Notices in Writing

 

Subject to the Act and except where otherwise expressly provided for in these Articles, any notice, document or information to be given, served or delivered by the Company pursuant to these Articles shall be in writing in a paper copy or, subject to Article 121, in electronic form.

 

120Service of Notices

 

120.1A notice or document (including a share certificate) to be given, served or delivered in pursuance of these Articles may be given to, served on or delivered to any member by the Company (or any agent / the registrar of the Company acting on its behalf):

 

120.1.1by handing it to him or his authorised agent;

 

120.1.2by leaving it at his registered address;

 

120.1.3by sending it by post in a pre-paid cover addressed to him at his registered address;

 

120.1.4by sending it by means of electronic mail or other means of electronic communication approved by the Directors to the address of the member notified to the Company by the member for such purpose; or

 

120.1.5by displaying it on a website (except a share certificate), the address of such shall be notified to the members in writing.

 

120.2Where a notice or document is given, served or delivered pursuant to Article 120.1.1 or Article 120.1.2, the giving, service or delivery thereof shall be deemed to have been effected at the time it was handed to the member or his authorised agent, or left at his registered address (as the case may be).

 

120.3Where a notice or document is given, served or delivered pursuant to Article 120.1.3, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of twenty-four hours after the cover containing it was posted. In proving such service or delivery it shall be sufficient to prove that such cover was properly addressed, stamped and posted.

 

120.4Where a notice or document is given, served or delivered pursuant to Article 120.1.4, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of twelve hours after despatch.

 

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120.5If a notice or document (other than a share certificate) is displayed on a website pursuant to Article 120.1.5 it is treated as being delivered when the recipient received (or is deemed to have received) notice of the fact that the material was available on the website.

 

120.6Every legal personal representative, committee, receiver, curator bonis or other legal curator, assignee in bankruptcy or liquidator of a member shall be bound by a notice given as aforesaid if sent to the last registered address of such member, or, in the event of notice given or delivered pursuant to Article 120.1.4, if sent to the address notified to the Company by the member for such purpose notwithstanding that the Company may have notice of the death, incapacity, bankruptcy, liquidation or disability of such member.

 

120.7Without prejudice to the provisions of Article 120.1 and Article 120.2, if at any time by reason of the suspension or curtailment of postal services within the State, the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice issued through an RIS and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day on which the said notice is issued by such RIS. In any such case, the Company shall put a full copy of the notice of the general meeting on its website and shall send confirmatory copies of the notice through the post to those members whose registered addresses are outside the State (if or to the extent that in the opinion of the Directors it is practical so to do) or are in areas of the State unaffected by such suspension or curtailment of postal services and if at least ninety-six hours prior to the time appointed for the holding of the meeting the posting of notices to members in the State, or any part thereof which was previously so affected, has again, in the opinion of the Directors, become practical, the Directors shall forthwith send confirmatory copies of the notice by post to such members. The accidental omission to give any such confirmatory copy of a notice of a meeting to, or the non-receipt of any such confirmatory copy by, any person entitled to receive the same shall not invalidate the proceedings at the meeting.

 

120.8At the option of the Company, and where appropriate means are available, notice may also be served on any particular Holder or Holders by means of facsimile, electronic mail or other such means as may be available.

 

120.9Notwithstanding anything contained in this Article, the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services within or in relation to all or any part of any jurisdiction or other area other than the State.

 

121Use of Electronic Communication

 

121.1Any requirement in these Articles or otherwise for the consent of a member, to be obtained or given, in respect to the receipt by such member of electronic mail or other means of electronic communications approved by the Directors, including the receipt of the Company’s audited account and the directors’ and auditor’s reports thereon, shall be deemed to have been satisfied where the Company has written to the member informing him/her of its intention to use electronic communications for such purposes and the member has not, within four weeks of the issue of such notice, served an objection in writing on the Company to such proposal. Where a member has given, or is deemed to have given, his/her consent to the receipt by such member of electronic mail or other means of electronic communications approved by the Directors, he/she may revoke such consent at any time by requesting the Company to communicate with him/her in documented form; provided however, that such revocation shall not take effect until ten days after written notice of the revocation is received by the Company.

 

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121.2Notwithstanding any other provision of these Articles, whenever any person (including without limitation the Company, a Director, the Secretary, any officer of the Company, a member or any other person) is required or permitted by these Articles or otherwise to give or receive information in writing, such information may be given or received in electronic form, whether as an electronic communication or otherwise in such manner or form and subject to such restrictions as the Directors shall determine from time to time in their absolute discretion and subject to the following provisions of this Article.

 

121.3Subject to Article 120.1.4, the manner or form (including any relevant restrictions) of or relating to electronic communication between the Company, the Directors, the Secretary, the officers of the Company, the members or any other person shall be governed by such terms and conditions of electronic communication as may be made by the Directors at any time and from time to time. The Directors may at any time supplement, vary or revoke any such terms and conditions.

 

121.4The Company and its Directors, Secretary or officers shall not be compelled to receive or to send electronic communications or information in electronic form under these Articles or otherwise until such time as the Directors shall have advised (pursuant to any terms and conditions of electronic communication or otherwise) the recipient or giver, as the case may be, in writing of the manner, form and restrictions (if any) by which such information may be sent or received.

 

121.5The terms and conditions of electronic communication issued by the Directors pursuant to this Article may include, without limitation, provisions designed to:

 

121.5.1ensure the security of electronic communication;

 

121.5.2establish and authenticate the identity of the giver or recipient, as the case may be, of the information;

 

121.5.3record the consent of the giver or recipient, as the case may be, of the information by electronic means or in electronic form; and

 

121.5.4prescribe the method of determining the date and time at which any electronic communication is to be treated as sent or received.

 

121.6For the avoidance of doubt, any giver or recipient of information who has notified the Company in writing of his election to give or receive information in electronic form whether as an electronic communication or otherwise may at any time, by notice given in accordance with the terms and conditions of electronic communication issued by the Directors, elect to give or receive the information in any one of the other forms permitted by these Articles.An electronic communication shall not be treated as received by the Company if it is rejected by computer virus protection arrangements.

 

121.7Nothing in the preceding provisions of this Article 121 shall affect any requirement of the Act or any other laws that a particular offer, notice or other document be served in any particular manner.

 

122Service on Joint Holders

 

A notice may be given by the Company to the joint Holders of a share by giving the notice to the joint Holder whose name stands first in the Register in respect of the share and notice so given shall be sufficient notice to all the joint Holders.

 

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123Service on Transfer or Transmission of Shares

 

123.1Every person who becomes entitled to a share shall be bound by any notice in respect of that share which, before his name is entered in the Register in respect of the share, has been duly given to a person from whom he derives his title provided that the provisions of this Article shall not apply to any notice served under Article 12.1 or to any notice served under Article 13 unless, under the provisions of Article 13.2, it is a notice which continues to have effect notwithstanding the registration of a transfer of the shares to which it relates.

 

123.2Without prejudice to the provisions of these Articles allowing a meeting to be convened by notice issued by an RIS, a notice may be given by the Company to the persons entitled to a share in consequence of the death or bankruptcy of a member by sending or delivering it, in any manner authorised by these Articles for the giving of notice to a member, addressed to them at the address, if any, supplied by them for that purpose. Until such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred.

 

124Signature to Notices

 

The signature (whether electronic signature, an advanced electronic signature or otherwise) to any notice to be given by the Company may be written (in electronic form or otherwise) or printed.

 

125Deemed Receipt of Notices

 

A member present, either in person or by proxy, at any meeting of the Company or the Holders of any class of shares in the Company, shall be deemed to have received due notice of the meeting and, where requisite, of the purposes for which it was called.

 

PART XXI — WINDING UP

 

126Distribution on Winding Up

 

If the Company shall be wound up and the assets available for distribution among the members as such shall be insufficient to repay the whole of the paid up or credited as paid up share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the members in proportion to the capital paid up or credited as paid up at the commencement of the winding up on the shares held by them respectively. If in a winding up the assets available for distribution among the members shall be more than sufficient to repay the whole of the share capital paid up or credited as paid up at the commencement of the winding up, the assets shall be distributed among the members in accordance with Article 3. Provided that this Article shall not affect the rights of the Holders of shares issued upon special terms and conditions.

 

127Distribution in Specie

 

If the Company is wound up, the liquidator may, with the sanction of a special resolution of the Company and any other sanction required by the Act divide among the members in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for such purpose, value any assets and determine how the division shall be carried out as between the members or different classes of members. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributories as he, with the like sanction determines, but so that no member shall be compelled to accept any assets upon which there is a liability.

 

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PART XXII — MISCELLANEOUS

 

128Inspection and Confidentiality

 

The Directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of members, not being Directors, and no member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by the Act or authorised by the Directors or by the Company in general meeting and no member (not being a Director) shall be entitled to require discovery of or receive any information concerning any detail of the business, assets, property, trading or customers of the Company or any subsidiary or associated company thereof or any matter which is or may be in the nature of a trade secret, mystery of trade, or secret process which may relate to the conduct of business by the Company or any subsidiary or associated company thereof and which, in the opinion of the Directors, it would be inexpedient in the interests of the members of the Company to communicate to the public.

 

129Destruction of Records

 

The Company shall be entitled to destroy all instruments of transfer which have been registered at any time after the expiration of six years from the date of registration thereof, all notifications of change of address at any time after the expiration of two years from the date of recording thereof and all share certificates and dividend mandates which have been cancelled or ceased to have effect at any time after the expiration of one year from the date of such cancellation or cessation. It shall be conclusively presumed in favour of the Company that every entry in the Register purporting to have been made on the basis of an instrument of transfer or other document so destroyed was duly and properly made and every instrument duly and properly registered and every share certificate so destroyed was a valid and effective document duly and properly cancelled and every other document hereinbefore mentioned so destroyed was a valid and effective document in accordance with the recorded particulars thereof in the books or records of the Company. Provided always that:

 

129.1the provision aforesaid shall apply only to the destruction of a document in good faith and without notice of any claim (regardless of the parties thereto) to which the document might be relevant;

 

129.2nothing herein contained shall be construed as imposing upon the Company any liability in respect of the destruction of any document earlier than as aforesaid or in any other circumstances which would not attach to the Company in the absence of this Article; and

 

129.3references herein to the destruction of any document include references to the disposal thereof in any manner.

 

130Untraced Shareholders

 

130.1The Company shall be entitled to sell at the best price reasonably obtainable any share of a Holder, or any share to which a person is entitled by transmission, if and provided that:

 

130.1.1for a period of twelve years no cheque or warrant sent by the Company through the post in a pre-paid letter addressed to the Holder, or to the person entitled by transmission to the share, at his address on the Register or otherwise the last known address given by the Holder, or to the person entitled by transmission, to which cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the Holder, or the person entitled by transmission, (provided that during such twelve year period at least three dividends shall have become payable in respect of such share);

 

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130.1.2the Company has, on or after the expiration of the said period of twelve years, by advertisement in a national newspaper both in the State and in the United Kingdom, and in a newspaper circulating in the area in which the address referred to in Article 130.1.1 is located, given notice of its intention to sell such share;

 

130.1.3the Company has not during the further period of three months after the date of the advertisement and prior to the exercise of the power of sale received any communication from the Holder or person entitled by transmission; and

 

130.1.4the Company has first given notice in writing to the New York Stock Exchange and the London Stock Exchange of its intention to sell such share.

 

130.2To give effect to any such sale, the Company may appoint any person to execute as transferor an instrument of transfer of such share and such instrument of transfer shall be as effective as if it had been executed by the Holder or the person entitled by transmission to such share. The transferee shall be entered in the Register as the Holder of the shares comprised in any such transfer and he shall not be bound to see to the application of the purchase monies nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.

 

130.3The Company shall account to the Holder or other person entitled to such share for the net proceeds of such sale by carrying all monies in respect thereof to a separate account which shall be a debt of the Company and the Company shall be deemed to be a debtor and not a trustee in respect thereof for such Holder or other person. Monies carried to such separate account may either be employed in the business of the Company or invested in such investments as the Directors may from time to time think fit.

 

130.4Where a share, which is to be sold as provided in this Article 130, is held in uncertificated form, the Directors may authorise some person to do all that is necessary to change such share into certificated form prior to its sale under this Article.

 

131Indemnity

 

131.1Subject to the provisions of and so far as may be permitted by the Act every present or former Director and every present or former Secretary of the Company shall be entitled to be indemnified by the Company against all costs, charges, losses, expenses and liabilities incurred by him in the execution and discharge of his duties or in relation thereto including any liability incurred by him in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him as an officer or employee of the Company and in which judgment is given in his favour (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his part) or in which he is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him by the Court.

 

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131.2As far as permissible under the Act, the Company shall indemnify any current or former executive or officer of the Company (excluding any present or former Director or Secretary) or any person who is serving or has served at the request of the Company as a director, executive, officer or trustee of another company, joint venture or other enterprise, including any Company subsidiary (each individually, a “Covered Person”) against any expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the Company, to which he or she was, is, or is threatened to be, made a party, or is otherwise involved, by reason of the fact that he or she is or was a Covered Person.

 

131.3In the case of any threatened, pending or completed action, suit or proceeding by or in the right of the Company, the Company shall indemnify, to the fullest extent permitted by the Act, each Covered Person against expenses, including attorneys’ fees, actually and reasonably incurred in connection with the defence or the settlement thereof, except no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for fraud or dishonesty in the performance of his or her duty to the Company unless and only to the extent that the Court or the court in which such action or suit was brought shall determine upon application that despite the adjudication of liability, but in view of all the circumstances of the case, such Covered Person is fairly and reasonably entitled to indemnity for such expenses as the Court shall deem proper.

 

131.4Any indemnification under this Article 131 (unless ordered by a court) shall be made by the Company only as authorised in the specific case upon a determination that indemnification of the Covered Person is proper in the circumstances because such person has met the applicable standard of conduct set forth in this Article 131. Such determination shall be made by any person or persons having the authority to act on the matter on behalf of the Company. To the extent, however, that any Covered Person has been successful on the merits or otherwise in defence of any proceeding, or in defence of any claim, issue or matter therein, such Covered Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without necessity of authorisation in the specific case.

 

131.5As far as permissible under the Act, expenses, including attorneys’ fees, incurred in defending any action, suit or proceeding referred to in this Article 131 shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of a written affirmation by or on behalf of the particular indemnitee of a good faith belief that the criteria for indemnification have been satisfied and a written undertaking to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company as authorised by these Articles.

 

131.6It being the policy of the Company that indemnification of the persons specified in this Article 131 shall be made to the fullest extent permitted by law, the indemnification provided by this Article 131 shall not be deemed exclusive (a) of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the memorandum of association, these Articles, any agreement, any insurance purchased by the Company, any vote of members or disinterested Directors, or pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, (b) of the power of the Company or any of its subsidiaries to indemnify any person who is or was an employee or agent of the Company or of another company, joint venture, trust or other enterprise which he or she is serving or has served at the request of the Company, to the same extent and in the same situations and subject to the same determinations as are hereinabove set forth, or (c) of any amendments or replacements of the Act which permit for greater indemnification of the persons specified in this Article 131 and any such amendment or replacement of the Act shall hereby be incorporated into these Articles. As used in this Article 131.6, references to the “Company” include all constituent companies in a scheme of arrangement, consolidation or merger in which the Company or any predecessor to the Company by scheme of arrangement, consolidation or merger was involved. The indemnification provided by this Article 131 shall continue as to a person who has ceased to be a Covered Person and shall inure to the benefit of their heirs, executors, and administrators.

 

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131.7The Company may additionally indemnify any employee or agent of the Company or any director, executive, officer, employee or agent of any of its subsidiaries to the fullest extent permitted by law.

 

132Arrangements in respect of the listing of the Company’s Ordinary Shares in the US

 

Subject to Article 132.2, immediately prior to or upon the listing of the Company’s Ordinary Shares on the New York Stock Exchange (the “US Listing”) becoming effective (the “Effective Time”), the legal title to each Euroclear Share shall be automatically transferred (without any further action by Euroclear Nominees) as follows:

 

132.1.1in respect of such number of Euroclear Shares as is equal to the number of Euroclear Shares represented by CDIs, legal title to such Euroclear Shares shall be transferred to Cede & Co., which will be recorded in the Register as the Holder of all such Euroclear Shares (as nominee for DTC), to be held pursuant to the rules and regulations of DTC on behalf of CTCNA (or such other person as the Directors may nominate) (the “DI Custodian”), as custodian for Computershare Investor Services plc (or such other person as the Directors may nominate) (the “DI Depositary”), which shall hold its interest(s) in such Euroclear Shares on trust as bare trustee under English law for the participants in the CREST System (“CREST Participants”) credited with the relevant CDI(s) on the US Listing Record Date against the issue to such CREST Participants of depositary interests operated by the DI Depositary (each representing an entitlement to one underlying Ordinary Share in the Company) (a “Depositary Interest”) under the arrangements described in the Company’s prospectus as approved by the Financial Conduct Authority of the United Kingdom on or about the date of adoption of these Articles (the “Prospectus”) and the relevant Depositary Interests will be issued subject to and governed by the terms and conditions of the DI Deed (as defined in the Prospectus); and

 

132.1.2in respect of all Euroclear Shares other than those transferred pursuant to Article 132.1.1, the Directors, acting in their absolute discretion on or before the Effective Time, shall be authorised to determine that legal title to such Euroclear Shares shall be transferred in accordance with this Article 132 either:

 

(a)severally, to the EB Participants (or such other person as the Directors may nominate) which are interested in such Euroclear Shares on the US Listing Record Date, with each such EB Participant being recorded in the Register as the sole Holder of such number of Euroclear Shares as that EB Participant was interested on the US Listing Record Date (and each such EB Participant, or their nominee, shall be deemed to have consented to becoming a member of the Company for the purpose of section 168(2) of the 2014 Act), and all such Euroclear Shares shall automatically become held in registered form in accordance with Article 15 without any further action by Euroclear Nominees, such EB Participant or the Company (or by the Company’s appointed registrar or transfer agent); and/or

 

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(b)to Cede & Co., which will be recorded in the Register as the Holder of all such Euroclear Shares (as nominee for DTC), to be held pursuant to the rules and regulations of DTC on behalf of the relevant entity through which Euroclear Bank holds its DTC participant account at the Effective Time, operating as investor central securities depository, which will hold its interests in such Euroclear Shares on behalf of the EB Participants interested in the relevant Euroclear Shares on the US Listing Record Date (and each EB Participant will continue to hold the same number of Belgian Law Rights (each representing one underlying Ordinary Share in the Company) as it did on the US Listing Record Date).

 

132.2Nothing in Article 132.1 shall apply to any Ordinary Share which the Directors, acting in their absolute discretion on or before the Effective Time, determine to be a Restricted Share. Instead, the Directors are irrevocably instructed and authorised to make such arrangements as they, acting in their absolute discretion, consider necessary, desirable or appropriate in relation to any Restricted Share(s) so that, following the Effective Time, such Restricted Share(s) are held in a manner that facilitates the effectiveness of the US Listing. The power conferred on the Directors pursuant to this Article 132.2 shall include, but is not limited to, (i) the power to convert any such Restricted Shares to registered form in accordance with Article 15.1 and (ii) the power to transfer, as attorney and/or agent on behalf of any Restricted Shareholder, legal title to any Restricted Share to such third party as the Directors may reasonably determine, in each case in order to comply with applicable US federal securities laws, the rules and regulations of DTC or any other applicable law.

 

132.3All mandates, preferences, elections and instructions of Holders of Ordinary Shares relating to the payment currency of dividends, notices and other communications which are in force immediately prior to the Effective Time will, to the extent reasonably possible, be continued after the Effective Time unless and until varied or revoked by such Holder at any time thereafter.

 

132.4To give effect to the US Listing, each Holder of Ordinary Shares is deemed to have consented and agreed to the following:

 

132.4.1the Company is irrevocably instructed and authorised to appoint any person (including the Secretary and any officer or employee of the Company or the registrar to the Company) as attorney and/or agent for the Holders of the Ordinary Shares (or any subsequent Holder or any nominee of such Holder or any such subsequent Holder) to take all such actions and do all such other things and execute and deliver all such documents and electronic communications as may be required or as may, in the opinion of such attorney or agent, be necessary or desirable to give full effect to the provisions of this Article 132, including but not limited to executing and delivering as transferor any instrument of transfer, form of register removal or instructions of transfer whether in written or electronic form on behalf of the relevant Holder (or any subsequent Holder or any nominee of such Holder or any such subsequent Holder) in favour of any person (including any transfer of legal title to Euroclear Shares to Cede & Co. (as nominee for DTC) as contemplated in Articles 132.1.1 or 132.1.2(b), any transfer of legal title to any Euroclear Share to any EB Participant (or any nominee of such EB Participant) as contemplated in Article 132.1.2(a) or any transfer of legal title to any Restricted Shares as contemplated in Article 132.2) and any such attorney and/or agent shall be entitled to certify on behalf of the relevant Holder that any such instrument of transfer, form of register removal or instructions of transfer will not result in a change in beneficial ownership of the underlying Ordinary Shares and that such transfer is not made in contemplation of a sale; and

 

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132.4.2the registrar to the Company and/or the Secretary may complete the registration of the transfer of legal title to any Ordinary Share as described in this Article 132 by registering the relevant Ordinary Shares in the name of the transferee in the Register without having to furnish the former Holder of the Ordinary Shares with any evidence of transfer or receipt.

 

133Shareholder rights plan

 

133.1Subject to applicable law, the Directors are hereby expressly authorised to adopt any shareholder rights plan (a “Rights Plan”), upon such terms and conditions as the Directors deem expedient and in the best interests of the Company, including, without limitation, where the Directors are of the opinion that a Rights Plan could grant them additional time to gather relevant information or pursue strategies in response to or anticipation of, or could prevent, a potential change of control of the Company or accumulation of shares in the Company or interests therein.

 

133.2The Directors may exercise any power of the Company to grant rights (including approving the execution of any documents relating to the grant of such rights) to subscribe for ordinary shares or preferred shares in the share capital of the Company (“Rights”) in accordance with the terms of a Rights Plan.

 

133.3For the purposes of effecting an exchange of Rights for ordinary shares or preferred shares in the share capital of the Company (an “Exchange”), the Directors may:

 

133.3.1resolve to capitalise an amount standing to the credit of the reserves of the Company (including, but not limited to, the share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution, being an amount equal to the nominal value of the ordinary shares or preferred shares which are to be exchanged for the Rights; and

 

133.3.2apply that sum in paying up in full ordinary shares or preferred shares and allot such shares, credited as fully paid, to those holders of Rights who are entitled to them under an Exchange effected pursuant to the terms of a Rights Plan.

 

133.4The common law duties of the Directors to the Company are hereby deemed amended and modified such that the adoption of a Rights Plan and any actions taken thereunder by the Directors (if so approved by the Directors) shall be deemed to constitute an action in the best interests of the Company in all circumstances, and any such action shall be deemed to be immediately confirmed, approved and ratified.

 

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Exhibit 4.1

 

SMURFIT KAPPA ACQUISITIONS,
as Issuer,

 

SMURFIT KAPPA FUNDING LIMITED,
as Parent and a Parent Guarantor,

 

SMURFIT KAPPA CORPORATION LIMITED,
as a Parent Guarantor,

 

SMURFIT KAPPA HOLDINGS LIMITED,
as a Parent Guarantor,

 

SMURFIT KAPPA INVESTMENTS LIMITED,
as a Parent Guarantor,

 

SMURFIT KAPPA GROUP PLC,
as a Parent Guarantor,

 

the Subsidiary Guarantors named herein,

 

DEUTSCHE TRUSTEE COMPANY LIMITED,
as Trustee

 

DEUTSCHE TRUSTEE AG, London Branch,
as Principal Paying Agent and Transfer Agent

 

and

 

DEUTSCHE BANK LUXEMBOURG S.A.,
as Registrar

 

 

 

INDENTURE

 

Dated as of February 16, 2015

 

 

 

2.75% Senior Notes due 2025

 

 

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE  1
SECTION 1.1 Definitions  1
SECTION 1.2 Incorporation by Reference of TIA  13
SECTION 1.3 Rules of Construction  13
ARTICLE II THE NOTES  14
SECTION 2.1 Form and Dating  14
SECTION 2.2 Execution and Authentication  14
SECTION 2.3 Registrar and Paying Agent  15
SECTION 2.4 Paying Agent To Hold Assets in Trust  16
SECTION 2.5 List of Holders  17
SECTION 2.6 Book-Entry Provisions for Global Notes  17
SECTION 2.7 Registration of Transfer and Exchange  18
SECTION 2.8 Replacement Notes  22
SECTION 2.9 Outstanding Notes  22
SECTION 2.10 Treasury Notes  23
SECTION 2.11 Temporary Notes  23
SECTION 2.12 Cancellation  23
SECTION 2.13 Defaulted Interest  23
SECTION 2.14 ISINs and Common Codes  24
SECTION 2.15 Deposit of Moneys  24
SECTION 2.16 Certain Matters Relating to Global Notes  24
SECTION 2.17 Interest  25
ARTICLE III REDEMPTION  25
SECTION 3.1 Optional Redemption  25
SECTION 3.2 Notices to Trustee  25
SECTION 3.3 Selection of Notes to Be Redeemed  25
SECTION 3.4 Notice of Redemption  25
SECTION 3.5 Effect of Notice of Redemption  27
SECTION 3.6 Deposit of Redemption Price  27
SECTION 3.7 Notes Redeemed in Part  27
ARTICLE IV COVENANTS  28
SECTION 4.1 Payment of Notes  28
SECTION 4.2 Maintenance of Office or Agency  28
SECTION 4.3 [Intentionally omitted]  28
SECTION 4.4 [Intentionally omitted]  28
SECTION 4.5 Corporate Existence  28
SECTION 4.6 Payment of Taxes and Other Claims  28
SECTION 4.7 Maintenance of Properties and Insurance  29
SECTION 4.8 Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries  29
SECTION 4.9 Compliance with Laws  30

 

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SECTION 4.10 Negative Pledge  30
SECTION 4.11 Waiver of Stay; Extension or Usury Laws  30
SECTION 4.12 [Intentionally omitted]  30
SECTION 4.13 [Intentionally omitted]  30
SECTION 4.14 [Intentionally omitted]  30
SECTION 4.15 [Intentionally omitted]  30
SECTION 4.16 [Intentionally omitted]  30
SECTION 4.17 Reports  31
SECTION 4.18 [Intentionally omitted]  32
SECTION 4.19 Change of Control Repurchase Event  32
SECTION 4.20 Additional Amounts  33
SECTION 4.21 Payment of Non-Income Taxes and Similar Charges  34
SECTION 4.22 Compliance Certificate; Notice of Default  34
SECTION 4.23 [Intentionally omitted]  35
SECTION 4.24 [Intentionally omitted]  35
SECTION 4.25 [Intentionally omitted]  35
SECTION 4.26 [Intentionally omitted]  35
SECTION 4.27 Further Instruments and Acts  35
ARTICLE V SUCCESSOR CORPORATION  35
SECTION 5.1 Consolidation, Merger, and Sale of Assets  35
SECTION 5.2 Successor Corporation Substituted  36
ARTICLE VI DEFAULT AND REMEDIES  36
SECTION 6.1 Events of Default  36
SECTION 6.2 Acceleration  37
SECTION 6.3 Other Remedies  38
SECTION 6.4 The Trustee May Enforce Claims Without Possession of Securities  38
SECTION 6.5 Rights and Remedies Cumulative  38
SECTION 6.6 Delay or Omission Not Waiver  38
SECTION 6.7 Waiver of Past Defaults  38
SECTION 6.8 Control by Majority  39
SECTION 6.9 Limitation on Suits  39
SECTION 6.10 Rights of Holders to Receive Payment  39
SECTION 6.11 Collection Suit by Trustee  39
SECTION 6.12 Trustee May File Proofs of Claim  40
SECTION 6.13 Priorities  40
SECTION 6.14 Restoration of Rights and Remedies  40
SECTION 6.15 Undertaking for Costs  41
SECTION 6.16 Additional Payments  41
ARTICLE VII TRUSTEE  41
SECTION 7.1 Duties of Trustee  41
SECTION 7.2 Rights of Trustee  42
SECTION 7.3 Individual Rights of Trustee  43
SECTION 7.4 Trustee’s Disclaimer  43

 

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SECTION 7.5 Notice of Default  44
SECTION 7.6 Compensation and Indemnity  44
SECTION 7.7 Replacement of Trustee  45
SECTION 7.8 Successor Trustee by Merger, etc  46
SECTION 7.9 Eligibility; Disqualification  46
SECTION 7.10 Disqualification; Conflicting Interests  46
SECTION 7.11 [Intentionally omitted]  46
SECTION 7.12 Force Majeure  46
SECTION 7.13 Consequential Loss  46
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE  47
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance  47
SECTION 8.2 Legal Defeasance and Discharge  47
SECTION 8.3 Covenant Defeasance  47
SECTION 8.4 Conditions to Legal or Covenant Defeasance  48
SECTION 8.5 Satisfaction and Discharge of Indenture  49
SECTION 8.6 Survival of Certain Obligations  50
SECTION 8.7 Acknowledgment of Discharge by Trustee  50
SECTION 8.8 Application of Trust Moneys  50
SECTION 8.9 Repayment to the Issuer; Unclaimed Money  50
SECTION 8.10 Reinstatement  51
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS  51
SECTION 9.1 Without Consent of Holders of Notes  51
SECTION 9.2 With Consent of Holders of Notes  53
SECTION 9.3 Revocation and Effect of Consents  54
SECTION 9.4 Notation on or Exchange of Notes  54
SECTION 9.5 Trustee to Sign Amendments, etc  54
ARTICLE X GUARANTEES  55
SECTION 10.1 Guarantee  55
SECTION 10.2 Limitation on Liability  56
SECTION 10.3 Successors and Assigns  56
SECTION 10.4 No Waiver  57
SECTION 10.5 Modification  57
SECTION 10.6 Release of Guarantor  57
SECTION 10.7 Execution of Supplemental Indenture for Future Guarantors  58
ARTICLE XI MISCELLANEOUS  58
SECTION 11.1 Notices  58
SECTION 11.2 Communications by Holders with Other Holders  60
SECTION 11.3 Certificate and Opinion as to Conditions Precedent  60
SECTION 11.4 Statements Required in Certificate or Opinion  60
SECTION 11.5 Rules by Trustee, Paying Agent, Registrar  61
SECTION 11.6 Legal Holidays 61
SECTION 11.7 Governing Law  61
SECTION 11.8 Submission to Jurisdiction; Appointment of Agent for Service  61
SECTION 11.9 No Adverse Interpretation of Other Agreements  62

 

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SECTION 11.10 No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders  62
SECTION 11.11 Currency Indemnity  62
SECTION 11.12 Currency Calculation  62
SECTION 11.13 Information  62
SECTION 11.14 Successors  63
SECTION 11.15 Counterpart Originals  63
SECTION 11.16 Severability  63
SECTION 11.17 Table of Contents, Headings, etc  63
SECTION 11.18 Termination of Priority Agreement  63

 

SCHEDULES

 

Schedule A - Subsidiary Guarantors

 

EXHIBITS    
Exhibit A - Form of Global Note
Exhibit B - Form of Definitive Note
Exhibit C - Form of Transfer Certificate for Transfer from Rule 144A Global Note to Regulation S Global Note
Exhibit D - Form of Supplemental Indenture
Exhibit E - Limitations on Guarantees

 

iv

 

 

INDENTURE, dated as of February 16, 2015, among: (i) Smurfit Kappa Acquisitions, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (ii) Smurfit Kappa Funding Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Parent”), (iii) Smurfit Kappa Corporation Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKC”), (iv) Smurfit Kappa Holdings Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKHL”), (v) Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKIL”), and (vi) Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKG” together with Parent, SKC, SKHL and SKIL, the “Parent Guarantors”), (vii) the Subsidiary Guarantors named in Schedule A hereto, (viii) Deutsche Trustee Company Limited, as Trustee, (ix) Deutsche Bank AG, London Branch, Principal Paying Agent and Transfer Agent and (x) Deutsche Bank Luxembourg S.A., as Registrar.

 

The Issuer has duly authorized the creation and issuance of its 2.75% Senior Notes due 2025 issued on the date hereof (the “Original Notes”) and the Issuer may issue, from time to time after the date hereof, an unlimited principal amount of additional securities having identical terms and conditions as any series of the Original Notes (the “Additional Notes”, and together with the Original Notes, the “Notes”); and, to provide therefor, the Issuer has duly authorized the execution and delivery of this Indenture. The aggregate principal amount of Notes that shall be issued on the date hereof equals €250.0 million.

 

Each party hereto agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes:

 

Article I

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.1      Definitions. For purposes of this Indenture, unless otherwise specifically indicated herein, the term “consolidated” with respect to any Person refers to such Person consolidated with its Subsidiaries. In addition, for purposes of the following definitions and this Indenture generally, all ratios and computations based on IFRS shall be made in accordance with IFRS and shall be based upon the consolidated financial statements of SKG and its subsidiaries prepared in conformity with IFRS. As used in this Indenture, the following terms shall have the following meanings:

 

“Acceleration Notice” shall have the meaning set forth in Section 6.2.

 

“Additional Amounts” shall have the meaning set forth in Section 4.20(b).

 

“Additional Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control”, as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such

 

 

 

 

Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be control. For purposes of this definition, the terms “controlling”, “controlled by” and “under common control with” shall have correlative meanings.

 

“Agent” means the Principal Paying Agent, any Registrar, Paying Agent, Authenticating Agent or co-Registrar.

 

“Agent Members” shall have the meaning set forth in Section 2.16(a).

 

“Attributable Debt” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with IFRS.

 

“Authenticating Agent” shall have the meaning set forth in Section 2.2.

 

“Authorized Agent” shall have the meaning set forth in Section 11.8.

 

Bankruptcy Law means (i) for purposes of the Issuer, any bankruptcy, insolvency, winding-up or other similar statute (including the relevant provisions of the Irish Companies Acts 1963-2013 and the examinership court protection procedure and other provisions of the Companies (Amendment) Act 1990 (as amended) of Ireland, and any similar statute), regulation or provision of any jurisdiction in which the Issuer is organized or conducting business and (ii) for purposes of the Trustee and the Holders, Title 11, U.S. Code or any similar United States Federal, state or foreign law for the relief of creditors.

 

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” shall have a corresponding meaning.

 

“Board of Directors” means: (1) with respect to a corporation, the board of directors of the corporation; (2) with respect to a partnership, the board of directors of the general partner of the partnership; and (3) with respect to any other Person, the board or committee of such Person serving a similar function.

 

“Board Resolution” means a duly authorized resolution of the Board of Directors of the Issuer certified by an Officer and delivered to the Trustee.

 

“Bund Rate” means, with respect to any relevant date, the rate per annum equal to the equivalent yield to maturity as of such date of the Comparable German Bund Issue, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such relevant date, where:

 

(1)            “Comparable German Bund Issue” means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such redemption date to March 1, 2021 and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro-denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to March 1, 2021; provided, however, that, if the period from such redemption date to March 1, 2021 is less than one year, a fixed maturity of one year shall be used;

 

2

 

 

(2)            ”Comparable German Bund Price” means, with respect to any relevant date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations;

 

(3)            “Reference German Bund Dealer” means any dealer of German Bundesanleihe securities appointed by the Issuer; and

 

(4)            “Reference German B Quotations” means, with respect to each Reference German Bund Dealer and any relevant date, the average as determined by the Issuer of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day preceding the relevant date.

 

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City, Dublin or London.

 

“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with IFRS.

 

“Capital Stock” means:

 

(1)            in the case of a corporation, corporate stock;

 

(2)            in the case of a company, shares of such company;

 

(3)            in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(4)            in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person; provided that debt securities convertible into interests specified in (1) through (5) above shall not be deemed “Capital Stock.”

 

“Change in Tax Law” shall have the meaning set forth in Paragraph 8 of any Note.

 

3

 

 

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

 

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

 

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

 

(3)            the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) other than a Parent Guarantor or other direct or indirect parent company that is wholly owned by a Parent Guarantor becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Issuer, measured by voting power rather than number of shares; or

 

(4)            the first day on which a majority of the members of the Board of Directors of the Issuer or SKG are not Continuing Directors.

 

“Change of Control Offer” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment Date” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Repurchase Event” means a Change of Control and a Rating Event.

 

“Clearing Agency” means one or more of Euroclear, Clearstream Banking, or the successor of either of them, in each case acting directly, or through a custodian, nominee or depository.

 

“Clearstream Banking” means Clearstream Banking, societe anonyme.

 

“Closing Date” means the date of this Indenture.

 

“Code” means the United States Internal Revenue Code of 1986, as amended.

 

“Commission” means the United States Securities and Exchange Commission, or any successor entity thereof from time to time.

 

“Common Depositary” means the common depositary for Euroclear and Clearstream Banking, which shall initially be Deutsche Bank AG, London Branch, or its nominee, which shall initially be BT Globenet Nominees Limited.

 

“Consolidated Net Tangible Assets” means, as of any date of determination, the total amount of all assets of SKG and its Subsidiaries, determined on a consolidated basis in accordance with IFRS, as of the end of the most recent fiscal quarter for which SKG’s financial statements are available, less the sum of:

 

(1)            SKG’s consolidated current liabilities as of such quarter end (other than (a) short-term borrowings and (b) long-term debt due within one year), determined on a consolidated basis in accordance with IFRS; and

 

(2)            SKG’s consolidated assets that are properly classified as intangible assets as of such quarter end, determined on a consolidated basis in accordance with IFRS.

 

4

 

 

“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Issuer or SKG, as applicable, who: (1) was a member of such Board of Directors on the date of this Indenture; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election.

 

Corporate Trust Office means the address of the Trustee specified in Section 11.1, or such other address as to which the Trustee may, from time to time, give written notice to the Issuer.

 

“Covenant Defeasance” shall have the meaning set forth in Section 8.3.

 

“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

“Default Interest Payment Date” shall have the meaning set forth in Section 2.13.

 

“Definitive Notes” means Notes in definitive registered form substantially in the form of Exhibit B hereto.

 

“Directive” means the European Union Directive 2003/48/EC regarding the taxation of savings income.

 

“Euroclear” means Euroclear Bank S.A./N.V.

 

“Event of Default” shall have the meaning set forth in Section 6.1.

 

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

 

“Existing Senior Notes” means the (i) €500.0 million in aggregate principal amount outstanding of 3.250% Senior Secured Notes due 2021 issued by the Issuer, (ii) €200.0 million in aggregate principal amount outstanding of 5.125% Senior Secured Notes due 2018 issued by the Issuer, (iii) U.S.$300.0 million in aggregate principal amount outstanding of 4.875% Senior Secured Notes due 2018 issued by the Issuer, (iv) €250.0 million in aggregate principal amount outstanding of Senior Secured Floating Rate Notes due 2020 issued by the Issuer and (v) €400.0 million in aggregate principal amount outstanding of 4.125% Senior Secured Notes due 2020 issued by the Issuer.

 

“Global Notes” means the Regulation S Global Note and the Rule 144A Global Note.

 

“guarantee” means a guarantee, contingent or otherwise, of all or any part of any Indebtedness (other than by endorsement of negotiable instruments for collection in the ordinary course of business), including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof.

 

“Guarantee” means any guarantee by a Guarantor of the Issuer’s obligations under this Indenture and the Notes pursuant to the terms of this Indenture.^

 

”Guarantee Obligations” shall have the meaning set forth in Section 10.1(a).

 

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“Guarantor” means the Parent Guarantors, the Subsidiary Guarantors and their respective successors and assigns, in each case, until the Guarantee of such Person has been released in accordance with the provisions of this Indenture.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements; and (2) other similar agreements or arrangements designed to enable such Person to manage fluctuations in interest rates.

 

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

 

“IFRS” means International Financial Reporting Standards as adopted by the European Union, International Financial Reporting Interpretations Committee as in effect as of the date of this Indenture; provided, however, that all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with IFRS as in effect on the date of such report or other financial information. All ratios and computations based on IFRS contained in this Indenture will be computed in conformity with IFRS.

 

“Indebtedness” means, with respect to any specified Person, any Indebtedness of such Person, whether or not contingent, in respect of:

 

(1)            borrowed money;

 

(2)            bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(3)            banker’s acceptances, letters of credit and similar instruments;

 

(4)            Capital Lease Obligations and Attributable Debt;

 

(5)            the deferred balance of the purchase price of any property which remains unpaid, except any such balance that constitutes an operating lease payment, accrued expense, trade payable or similar current liability; or

 

(6)            any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with IFRS. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person.

 

The amount of any Indebtedness outstanding as of any date shall be:

 

(1)            the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and

 

(2)            the principal amount thereof in the case of any other Indebtedness.

 

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In addition, Indebtedness of any Person shall include Indebtedness described in the preceding paragraph that would not appear as a liability on the balance sheet of such Person if:

 

(1)            such Indebtedness is the obligation of a partnership or joint venture that is not a Subsidiary of such Person (a “Joint Venture”);

 

(2)            such Person or a Subsidiary of such Person is a general partner of the Joint Venture (a “General Partner”); and

 

(3)            there is recourse, by contract or operation of law, with respect to the payment of such Indebtedness to property or assets of such Person or a Subsidiary of such Person; and then such Indebtedness shall be included in an amount not to exceed:

 

(a)the lesser of (i) the net assets of the General Partner and (ii) the amount of such obligations to the extent that there is recourse, by contract or operation of law, to the property or assets of such Person or a Subsidiary of such Person; or

 

(b)if less than the amount determined pursuant to clause (i) immediately above, the actual amount of such Indebtedness that is recourse to such Person or a Subsidiary of such Person, if the Indebtedness is evidenced by a writing and is for a determinable amount and the related interest expense shall be included in consolidated interest expense to the extent actually paid by the Issuer or its Subsidiaries.

 

“Indenture” means this Indenture, as amended, modified or supplemented from time to time in accordance with the terms hereof.

 

“Investment Grade Rating” means:

 

(1)            with respect to S&P any of the rating categories from and including AAA to and including BBB-; and

 

(2)            with respect to Moody’s any of the rating categories from and including Aaa to and including Baa3.

 

“Issue Date” means the date on which Notes are originally issued under this Indenture.

 

“Issuer” means the party named as such in this Indenture until a successor replaces it pursuant to this Indenture and thereafter means such successor.

 

“Issuer Order” means a written order or request signed in the name of the Issuer by (i) two Officers of the Issuer, one of whom must be the Chief Executive Officer, the President, the Chief Financial Officer or the Finance Director of the Issuer or any other Officer so authorized or (ii) two members of the Board of Directors of the Issuer, and delivered to the Trustee.

 

“Legal Defeasance” shall have the meaning set forth in Section 8.2.

 

Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement.

 

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“Maturity Date” means February 1, 2025.

 

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

 

“Notes” shall have the meaning set forth in the preamble of this Indenture.

 

“Offering Memorandum” means the Offering Memorandum of the Issuer, dated February 11, 2015, relating to the Notes.

 

“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer or the Secretary of the Parent, the Issuer or SKG, as applicable.

 

“Officers’ Certificate” means a certificate signed by two Officers of the Parent, the Issuer or SKG, as applicable.

 

”Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee.

 

“Original Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Other Hedging Agreements” means any foreign exchange contracts, currency swap agreements, futures contract, option contract, commodity futures contract, commodity option, commodity swap, commodity collar agreement, commodity cap agreements or other similar agreements or arrangements designed to enable such Person to manage the fluctuations in currency or commodity values.

 

“Parent Guarantors” means the parties named as such in this Indenture or any successor entity.

 

“Paying Agent” shall have the meaning set forth in Section 2.3.

 

“Payment Default” shall have the meaning set forth in Section 6.1(4)(a).

 

“Payor” means the Issuer or a successor thereof.

 

“Permitted Interest” means any Securitization Lien or other Lien that arises in relation to any securitization or other structured finance transaction where:

 

(1)            the primary source or payment of any obligations of the issuer is linked or otherwise related to cash flow from particular property or assets (or where payment of such obligations is otherwise supported by such property or assets); and

 

(2)            recourse to the issuer in respect of such obligations is conditional on cash flow from such property or assets.

 

“Permitted Liens” means:

 

(1)            Liens created for the benefit of or to secure the Notes or the Guarantees;

 

(2)            Liens in favor of the Issuer or any Subsidiary;

 

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(3)            Liens on property or assets or shares of stock of a Person existing at the time such Person is merged with or into or consolidated with the Issuer or any Subsidiary of the Issuer provided that such Liens were not incurred in contemplation of such merger or consolidation and do not extend to any Principal Property other than such property of the Person merged into or consolidated with the Issuer or the Subsidiary;

 

(4)            Liens on property or assets or shares of stock existing at the time of acquisition thereof by the Issuer or any Subsidiary of the Issuer and purchase money or similar Liens; provided that such Liens were not incurred in contemplation of such acquisition and do not extend to any other property, assets or shares of stock, as applicable;

 

(5)            Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature or arising by operation of law incurred in the ordinary course of business;

 

(6)            Liens to secure certain development, construction, alteration, repair or improvement costs or to secure Indebtedness incurred to provide funds for the reimbursement of funds expended for the foregoing purposes; provided that the Liens securing such costs or Indebtedness shall not extend to any Principal Property other than that being so developed, constructed, altered, repaired or improved;

 

(7)            Liens existing on the date of the Indenture;

 

(8)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith;

 

(9)            statutory mechanics’, workmen’s, materialmen’s, operators’ or similar Liens arising by operation of law and arising in the ordinary course of business;

 

(10)            Liens incurred in connection with government contracts, including the assignment of moneys due or to become due thereon;

 

(11)            Liens securing Hedging Obligations or Other Hedging Agreements, in each case not for speculative purposes;

 

(12)            Liens arising in the ordinary course of business and not in connection with the borrowing of money or Liens to secure the payment of pension, retirement or similar obligations;

 

(13)            Liens securing judgments or orders, or securing appeal or other surety bonds related to such judgments or orders, against the Issuer or any Subsidiary of the Issuer relating to litigation being contested in good faith by appropriate proceedings;

 

(14)            Liens securing any Permitted Interest; and

 

(15)            extensions, substitutions, replacements or renewals of any of the foregoing Indebtedness; provided that (i) such Indebtedness is not increased and (ii) if the assets securing any such Indebtedness are changed in connection with any such extension, substitution, replacement or renewal, the value of the assets securing such Indebtedness is not increased.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

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“Principal Property” means any building, structure or other facility, together with the land upon which it is erected and fixtures comprising a part thereof or any production, processing or other similar equipment or machinery contained therein, owned or leased by the Issuer or any Subsidiary, used primarily for manufacturing, the net book value on the books of SKG of which on the date as of which the determination is being made exceeds €10.0 million, other than any such building, structure or other facility or any portion thereof or any such fixture, equipment or machinery (together with the land upon which it is erected and fixtures comprising a part thereof) which, in the opinion of the Board of Directors of the Issuer, is not of material importance to the total business conducted by the Issuer and its Subsidiaries taken as a whole.

 

“Priority Agreement” means the Amended and Restated Priority Agreement, dated 16 July 2013, as amended, modified, supplemented or replaced from time to time, among the Parent, certain Subsidiaries of the Parent, the trustees for the Existing Senior Notes and the other parties thereto from time to time.

 

“Private Placement Legend” means the legend set forth in Section 2.7(g).

 

“Public Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (1) a public offering registered under the Securities Act or (2) a private placement to institutional investors that is underwritten for resale in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the Commission for public resale. The term “Public Indebtedness,” for the avoidance of doubt, shall not be construed to include any Indebtedness issued to institutional investors in a direct placement of such Indebtedness that is not underwritten by an intermediary (it being understood that, without limiting the foregoing, a financing that is distributed to not more than ten Persons (provided that multiple managed accounts and affiliates of any such Persons shall be treated as one Person for the purposes of this definition) shall not be deemed underwritten), or any Indebtedness under the Senior Facility Agreement, commercial bank or similar Indebtedness, Capital Lease Obligation or recourse transfer of any financial asset or any other type of Indebtedness Incurred in a manner not customarily viewed as a “securities offering” or in connection with any securitization or other structured finance transaction.

 

“Purchase Agreement” means the Purchase Agreement dated as of the date of the Offering Memorandum, among the Issuer, the Guarantors and the Initial Purchasers.

 

“Qualified Institutional Buyer” or “QB” shall have the meaning specified in Rule 144A under the Securities Act.

 

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

 

“Rating Event” means either (a) the Notes are not then rated by both Rating Agencies as having an Investment Grade Rating or (b) there is a decrease in the rating of the Notes by one of the Rating Agencies on or within 90 days of the date of the Change of Control (which period shall be extended so long as any Rating Agency has publicly announced that it is considering a possible downgrade of the Notes) which causes the Notes to no longer have an Investment Grade Rating from both Rating Agencies.

 

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“Record Date” means a Record Date specified in the Notes.

 

“Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 7 of the Notes.

 

“Redemption Price” when used with respect to any Note to be redeemed, means the price fixed for such redemption pursuant to this Indenture and Paragraphs 7 and 8 of the Notes.

 

“Registrar” shall have the meaning set forth in Section 2.3.

 

“Regulation S” means Regulation S (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Regulation S Global Note” shall have the meaning set forth in Section 2.1.

 

“Relevant Taxing Jurisdiction” shall have the meaning set forth in Section 4.20(a).

 

“Restricted Lien” shall have the meaning set forth in Section 4.10.

 

“Rule 144” means Rule 144 (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Rule 144A” means Rule 144A (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

Rule 144A Global Note shall have the meaning set forth in Section 2.1.

 

“S&P” means Standard & Poor’s Ratings Group or any successor to the rating agency business thereof.

 

Securities Act means the United States Securities Act of 1933, as amended.

 

“Securitization Lien” means a customary back-up security interest granted as part of a sale, lease, transfer or other disposition of assets by the Issuer or any of its Subsidiaries to, either directly or indirectly, any issuer in a securitization or other structured finance transaction.

 

“Senior Facility Agreement” means the senior facilities agreement dated 16 July 2013 between, among others, SKG as the parent; SK Limited as the company; Citigroup Global Markets Limited, Credit Agricole Corporate and Investment Bank, Danske Bank A/S, HSBC Bank plc, J.P. Morgan Limited and Ulster Bank Ireland Limited as mandated lead arrangers; and The Royal Bank of Scotland plc as agent, as the same may be amended, supplemented or otherwise modified from time to time and (ii) any renewal, extension, refunding, restructuring, replacement, or refinancing thereof (whether with the original facilities agent and lenders or another facilities agent or agents or other lenders and whether provided under the Senior Facility Agreement or any other agreement or indenture); provided that Indebtedness under the Senior Facility Agreement that constitutes Public Indebtedness shall not be deemed to be Indebtedness under the Senior Facility Agreement for purposes of clause (3) of Section 10.6.

 

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“Senior Secured Indebtedness” of any Person means, as of the date of determination, the Indebtedness of such Person that is secured by a Lien (determined on a consolidated basis in accordance with IFRS) other than Indebtedness consisting of Hedging Obligations.

 

“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date hereof.

 

“SKG” means the party named as such in this Indenture, and any successor thereto or any other entity that serves as the ultimate parent company of the Issuer.

 

“Subsidiary” means, with respect to any specified Person:

 

(1)            any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

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

 

provided, however, that for purposes of Section 4.10 and Section 6.1(5), the term “Subsidiary” shall exclude (i) any Subsidiary which is principally engaged in leasing or in financing installment receivables or which is principally engaged in financing the operations of the Issuer and its Subsidiaries or (ii) any financial entity whose accounts as of the date of determination are not required to be consolidated with the accounts of SKG in its audited consolidated financial statements or (iii) any Subsidiary that is an issuer in a securitization or other structured financing transaction, so long as in the case of clauses (ii) or (iii) such Subsidiary does not own any Principal Property.

 

“Subsidiary Guarantors” means (i) the Subsidiary Guarantors named in Schedule A hereto and (ii) each existing and future Subsidiary of the Issuer that provides a Guarantee in accordance with the covenant set forth in Section 4.8.

 

“Successor Issuer” shall have the meaning set forth in Section 5.1.

 

“Tax Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 8 of the Notes.

 

“Taxes” shall have the meaning set forth in Section 4.20(a).

 

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

 

“Trust Officer” means any officer within Trust & Security Services (or any successor group of the Trustee), including any director, managing director, vice president, assistant vice president, corporate trust officer, assistant corporate trust officer, secretary, assistant secretary, treasurer, assistant treasurer, associate or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at that time shall be such officers having direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such trust matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

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“Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and thereafter means such successor.

 

“U.S. Person” means a “U.S. person” as defined in Rule 902 under the Securities Act or any successor rule.

 

“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

Incorporation by Reference of TIA. This Indenture is subject to the provisions of the TIA which as of the date hereof and thereafter as in effect are specifically incorporated by reference in, and made a part of, this Indenture. No other sections of the TIA are applicable to this Indenture.

 

All TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by any rule of the Commission and not otherwise defined herein have the meanings assigned to them therein.

 

SECTION 1.2      Incorporation by Reference of TIA. This Indenture is subject to the provisions of the TIA which as of the date hereof and thereafter as in effect are specifically incorporated by reference in, and made a part of, this Indenture. No other sections of the TIA are applicable to this Indenture.

 

All TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by any rule of the Commission and not otherwise defined herein have the meanings assigned to them therein.

 

SECTION 1.3      Rules of Construction. Unless the context otherwise requires:

 

(a)            a term has the meaning assigned to it;

 

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

 

(c)            “or” is not exclusive;

 

(d)            the term “including” is not limiting;

 

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

 

(f)            provisions apply to successive events and transactions; and

 

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

 

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Article II

 

THE NOTES

 

SECTION 2.1      Form and Dating. The Notes and the notation relating to the Trustee’s certificate of authentication thereof, shall be substantially in the form of Exhibit A or B, as applicable. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage; provided that any such notations, legends or endorsements are in a form reasonably acceptable to the Issuer. The Issuer and the Trustee shall approve the form of the Notes and any notation, legend or endorsement on them. Each Note shall be dated the date of its issuance and shall show the date of its authentication.

 

The terms and provisions contained in the Notes, annexed hereto as Exhibit A or B, shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Issuer, Trustee, the Registrar and the Principal Paying Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. The Notes will initially be represented by the Global Notes.

 

Notes offered and sold to non-U.S. persons outside the United States in offshore transactions in their initial distribution in reliance on Regulation S shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A hereto, with such applicable legends as are provided in Exhibit A, except as otherwise permitted herein (together with all other Notes that are not Rule 144A Global Notes, the “Regulation S Global Notes”). The aggregate principal amount of the Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Regulation S Global Note), in connection with a corresponding decrease or increase in the aggregate principal amount of the Rule 144A Global Note or in consequence of the issue of Definitive Notes or additional Regulation S Global Notes, as hereinafter provided.

 

Notes offered and sold in their initial distribution to QIBs in reliance on Rule 144A shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A hereto, with such applicable legends as are provided in Exhibit A hereto, except as otherwise permitted herein (the “Initial Rule 144A Global Notes” and together with any other Note evidencing the debt, or any portion of the debt, evidenced by such Initial Rule 144A Global Notes, the “Rule 144A Global Notes”). The aggregate principal amount of the Rule 144A Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Rule 144A Global Note), in connection with a corresponding decrease or increase in the aggregate principal amount of the Regulation S Global Notes or in consequence of the issue of Definitive Notes or additional Rule 144A Global Notes, as hereinafter provided.

 

SECTION 2.2      Execution and Authentication. Two Officers shall sign, or one Officer and one member of the Board of Directors of the Issuer shall sign, or two members of the Board of Directors of the Issuer shall sign, or one Officer shall sign and one Officer, a Secretary or an Assistant Secretary (each of whom shall, in each case, have been duly authorized by all requisite corporate actions) shall attest to, the Notes for the Issuer by manual or facsimile signature.

 

If an Officer or member of the Board of Directors of the Issuer whose signature is on a Note was an Officer or member of such Board of Directors at the time of such execution but no longer holds that office or position at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

 

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A Note shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

 

Except as otherwise provided herein, the aggregate principal amount of Notes which may be outstanding at any time under this Indenture is not limited in amount. The Trustee shall, upon receipt of an Issuer Order in the form of an Officers’ Certificate, authenticate (i) Original Notes for original issue on the Closing Date in an aggregate principal amount of €500.0 million in respect of the Notes and (ii) Additional Notes from time to time for issuance after the Closing Date to the extent permitted hereunder (including under Section 4.3 hereof). Additional Notes will be treated as the same series of Notes as the Original Notes for all purposes under this Indenture, including for purposes of waivers, amendments, redemptions and offers to purchase. Such Issuer Order shall specify the aggregate principal amount of Notes to be authenticated, the series and type of Notes, the date on which the Notes are to be authenticated, the issue price and the date from which interest on such Notes shall accrue, whether the Notes are to be Original Notes or Additional Notes, whether the Notes are to be issued as Definitive Notes or Global Notes and whether or not the Notes shall bear the Private Placement Legend, or such other information as the Trustee may reasonably request. Upon receipt of an Issuer Order in the form of an Officers’ Certificate, the Trustee shall authenticate Notes in substitution of Notes originally issued to reflect any name change of the Issuer. In authenticating the Notes and accepting the responsibilities under this Indenture in relation to the Notes, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.

 

The Trustee may appoint an authenticating agent (“Authenticating Agent”) reasonably acceptable to the Issuer to authenticate Notes. Unless otherwise provided in the 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 Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer. The Trustee initially appoints the Principal Paying Agent as Authenticating Agent of the Notes. The Notes shall be issuable only in denominations of €100,000 and any integral multiple of €1,000 in excess thereof.

 

SECTION 2.3      Registrar and Paying Agent. The Issuer shall maintain an office or agency where (a) Definitive Notes may be presented or surrendered for registration of transfer or for exchange (such office or agency, the “Registrar”), (b) Global Notes (and Definitive Notes, if issued) may be presented or surrendered for payment (“Paying Agent”) and (c) notices and demands in respect of such Global Notes (and Definitive Notes, if issued) and this Indenture may be served. In the event that Definitive Notes are issued, the Issuer shall ensure that at least one Person located in London, England and one Person located in Dublin, Ireland (if and for so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange and the rules of the Irish Stock Exchange so require), in each case reasonably acceptable to the Trustee, is maintained as a Paying Agent and Registrar where (i) in the case of a Registrar, Definitive Notes may be presented or surrendered for registration of transfer or for exchange and notices and demands in respect of such Definitive Notes and this Indenture may be served and (ii) in the case of a Paying Agent, Definitive Notes may be presented or surrendered for payment. The Registrar shall keep a register of the Definitive Notes and of their transfer and exchange. Notices and demands in respect of Global Notes shall be made by the Issuer in accordance with Section 11.1. The Issuer, upon written notice to the Trustee, may have one or more co-Registrars and one or more additional Paying Agents reasonably acceptable to the Trustee. The term “Registrar” includes any co-Registrar and the term “Paying Agent” includes any additional Paying Agent.

 

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The Issuer initially appoints Deutsche Bank AG, London Branch, as Principal Paying Agent and as Transfer Agent and Deutsche Bank Luxembourg S.A. as Registrar, until such time as any such entity has resigned or a successor has been appointed. In the event that a Paying Agent, Registrar or Transfer Agent is replaced, the Issuer will (so long as the Notes are Global Notes) provide written notice thereof to the Trustee in accordance with Section 11.1. The Issuer may change any Paying Agent, Registrar or Transfer Agent without prior notice to the Holders. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar in respect of the Notes. If and for so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange, and the rules of the Global Exchange Market of the Irish Stock Exchange so require, the Issuer will give notice of the change in Paying Agent, Registrar or Transfer Agent to the Companies Announcement Office of the Irish Stock Exchange in Dublin.

 

Payment of principal will be made upon the surrender of Definitive Notes following maturity thereof at the office of the Paying Agent. In the case of a transfer of a Definitive Note in part, upon surrender of the Definitive Note to be transferred, a Definitive Note shall be issued to the transferee in respect of the principal amount transferred and a Definitive Note shall be issued to the transferor in respect of the balance of the principal amount of the transferred Definitive Note at the office of any transfer agent. In all circumstances, the Issuer shall ensure that the Paying Agent shall be located outside Ireland.

 

In addition, the Issuer hereby undertakes that it will maintain a paying agent in a European Union member state that will not be obliged to withhold or deduct tax pursuant to the Directive.

 

For the avoidance of doubt, upon the issuance of Definitive Notes, Holders will be able to receive principal and interest on the Notes and will be able to transfer Definitive Notes at the office of such paying and transfer agent, subject to the right of the Issuer to mail payments in accordance with the terms of this Indenture.

 

Claims against the Issuer for payment of principal, interest and Additional Amounts, if any, on the Notes will become void unless presentment for payment is made (where so required herein) within, in the case of principal and Additional Amounts, if any, a period of ten years or, in the case of interest, a period of five years, in each case from the applicable original payment date therefor.

 

SECTION 2.4      Paying Agent To Hold Assets in Trust. The Issuer shall require each Paying Agent other than the Trustee and the Principal Paying Agent to agree in writing that each Paying Agent shall hold in trust for the benefit of Holders or the Trustee all assets held by the Paying Agent for the payment of principal of, Additional Amounts, if any, premium, if any, or interest on, the Notes, and shall notify the Trustee of any Default by the Issuer in making any such payment. The Issuer at any time may require a Paying Agent to distribute all assets held by it to the Trustee and account for any assets disbursed and the Trustee may at any time during the continuance of any payment Default, upon written request to a Paying Agent, require such Paying Agent to distribute all assets held by it to the Trustee and to account for any assets distributed. Upon distribution to the Trustee of all assets that shall have been delivered by the Issuer to the Paying Agent, the Paying Agent shall have no further liability for such assets.

 

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SECTION 2.5      List of Holders. In the event that Definitive Notes are issued, the Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of Notes. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee before each Record Date and at such other times as the Trustee may request in writing a list as of such date and in such form as the Trustee may reasonably require of the names and addresses of Holders of Notes, which list may be conclusively relied upon by the Trustee.

 

SECTION 2.6      Book-Entry Provisions for Global Notes. (a) The Global Notes initially shall (i) be registered in the name of the nominee of the Common Depositary for the accounts of Euroclear or Clearstream, (ii) deposited on behalf of the purchasers of the Notes with the Common Depositary or its custodian and (iii) bear legends as set forth in Section 2.7(g).

 

(b)            Notwithstanding any other provisions of this Indenture, Global Notes may not be transferred except as a whole by the Common Depositary to a nominee of the Common Depositary or by a nominee of the Common Depositary to the Common Depositary or another nominee of the Common Depositary or, in each case, to another successor of the Common Depositary or a nominee of such successor. Interests of beneficial owners in the Global Notes may be transferred or exchanged for Definitive Notes in accordance with the rules and procedures of the Clearing Agency and the provisions of this Section 2.6, subject to the occurrence of the limited circumstances described in the following sentence. All Global Notes shall be exchanged by the Issuer (with authentication by the Trustee upon receipt of an Issuer Order) for one or more Definitive Notes, if (a) any Clearing Agency notifies the Issuer at any time that it is unwilling or unable to continue to act as a clearing agency and a successor depositary is not appointed within 120 days of such notification, (b) any Clearing Agency so requests following an Event of Default hereunder or (c) in whole (but not in part) at any time if the Issuer in its sole discretion determines and notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes. If an Event of Default occurs and is continuing, the Issuer shall, at the written request delivered through the Common Depositary of the Holder thereof or of the holder of an interest therein, exchange all or part of a Global Note for one or more Definitive Notes (with authentication by the Trustee upon receipt of an Issuer Order); provided, however, that the principal amount at maturity of such Definitive Notes and such Global Note after such exchange shall be €100,000 or integral multiples of €1,000 in excess thereof. Whenever all of a Global Note is exchanged for one or more Definitive Notes, it shall be surrendered by the Holder thereof to the Registrar for cancellation. Whenever a part of a Global Note is exchanged for one or more Definitive Notes, the Global Note shall be surrendered by the Holder thereof to the Registrar who shall cause an adjustment to be made to Schedule A of such Global Note such that the principal amount of such Global Note will be equal to the portion of such Global Note not exchanged and shall thereafter return such Global Note to such Holder. A Global Note may not be exchanged for a Definitive Note other than as provided in this Section 2.6(b). Every Note authenticated and delivered in exchange for or in lieu of a Global Note, or any portion thereof, pursuant to Section 2.8, 2.11 or 3.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Note.

 

(c)            In connection with the transfer of Global Notes as an entirety to beneficial owners pursuant to paragraph (b) of this Section 2.6, the Global Notes shall be deemed to be surrendered to the Registrar for cancellation, and the Issuer shall execute, and the Trustee shall upon written instructions from the Issuer authenticate and make available for delivery, to each beneficial owner in exchange for its beneficial interest in the Global Notes, an equal aggregate principal amount of Definitive Notes of authorized denominations.

 

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(d)            Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.6(b) shall, except as otherwise provided by Section 2.7, bear the Private Placement Legend.

 

SECTION 2.7      Registration of Transfer and Exchange. (a) Notwithstanding any provision to the contrary herein, so long as a Note remains outstanding, transfers of beneficial interests in Global Notes or transfers of Definitive Notes, in whole or in part, shall be made only in accordance with this Section 2.7.

 

(b)            If a holder of a beneficial interest in a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in a Regulation S Global Note, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Regulation S Global Note, such holder may, subject to the rules and procedures of the Clearing Agency, to the extent applicable, and subject to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Regulation S Global Note. Upon (1) written instructions given in accordance with the procedures of the Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Rule 144A Global Note, directing the credit of a beneficial interest in the Regulation S Global Note in an amount equal to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (2) a written order given in accordance with the procedures of the Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account and (3) receipt by the Registrar of a certificate in the form of Exhibit C given by the holder of such beneficial interest stating that the exchange or transfer of such interest has been made pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S or Rule 144 under the Securities Act, the Registrar shall promptly deliver appropriate instructions to the Clearing Agency to reduce or reflect on its records a reduction of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred from the relevant participant, and the Registrar shall promptly deliver appropriate instructions to the Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Regulation S Global Note equal to the reduction in the principal amount of such Rule 144A Global Note.

 

(c)            If a holder of a beneficial interest in a Regulation S Global Note wishes at any time to exchange its interest in such Regulation S Global Note for an interest in a Rule 144A Global Note, or to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Rule 144A Global Note, such holder may, subject to the rules and procedures of the Clearing Agency, to the extent applicable, and to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Rule 144A Global Note. Upon (l) written instructions given in accordance with the procedures of the Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Regulation S Global Note directing the credit of a beneficial interest in the Rule 144A Global Note in an amount equal to the beneficial interest in the Regulation S Global Note to be exchanged or transferred, and (2) a written order given in accordance with the procedures of the Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account, the Registrar shall promptly deliver appropriate instructions to the Clearing Agency to reduce or reflect on its records a reduction of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be exchanged or transferred, and the Registrar shall promptly deliver appropriate instructions to the Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Rule 144A Global Note equal to the reduction in the principal amount of such Regulation S Global Note.

 

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(d)            Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in the other Global Note will, upon transfer, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.

 

(e)            In the event that a Global Note is exchanged for Definitive Notes in registered form without interest coupons, pursuant to Section 2.6(b), or a Definitive Note in registered form without interest coupons, or a Definitive Note is exchanged for a beneficial interest in a Global Note, such Notes may be exchanged or transferred for one another only in accordance with (i) such procedures as are substantially consistent with the provisions of Sections 2.7(b) and (c) above (including the certification requirements intended to ensure that such exchanges or transfers comply with Rule 144, Rule 144A or Regulation S, as the case may be) and as may be from time to time adopted by the Issuer and the Trustee.

 

(f)            [Intentionally omitted]

 

(g)            Each Rule 144A Note issued hereunder shall, upon issuance, bear the legend set forth herein and such legend shall not be removed from such Note except as provided in the next sentence. The legend required for a Rule 144A Note may be removed from a Rule 144A Note if there is delivered to the Issuer and the Trustee such satisfactory evidence, which may include an opinion of independent counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer and the Trustee, that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee, upon receipt of an Issuer Order, shall authenticate and deliver in exchange for such Note another Note or Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Rule 144A Note has been removed from a Rule 144A Note as provided above, no other Note issued in exchange for all or any part of such Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Note is a “restricted security” within the meaning of Rule 144 and instructs the Trustee to cause a legend to appear thereon.

 

The Rule 144A Notes shall bear the following legend (the “Private Placement Legend”) on the face thereof:

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

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THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(l), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA “), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA, NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

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(h)            By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.

 

None of the Trustee, the Registrar or the Principal Paying Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.6 or this Section 2.7. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

 

(i)            Definitive Notes shall be transferable only upon the surrender of a Definitive Note for registration of transfer. When a Definitive Note is presented to the Registrar or a co-registrar with a request to register a transfer, the Registrar shall register the transfer as requested if its requirements for such transfers are met. When Definitive Notes are presented to the Registrar or a co-registrar with a request to exchange them for an equal principal amount of Definitive Notes of other denominations, the Registrar shall make the exchange as requested if the same requirements are met. To permit registration of transfers and exchanges, the Issuer shall execute and, upon receipt of an Issuer Order, the Trustee shall authenticate Definitive Notes at the Registrar’s or co-registrar’s request.

 

at the Registrar s or co-registrar s request.

 

(j)            The Issuer shall not be required to make, and the Registrar need not register transfers or exchanges of, Definitive Notes (i) that have been selected for redemption (except, in the case of Definitive Notes to be redeemed in part, the portion thereof not to be redeemed) or (ii) for a period of 15 days prior to a selection of Definitive Notes to be redeemed.

 

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

 

(l)            No service charge will be made for any registration or transfer or exchange of the Notes, but the Trustee, the Registrar and the Paying Agent and transfer agents may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by this Section 2.7.

 

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

 

(n)            Holders of Notes (or holders of interests therein) and prospective purchasers designated by such Holders (or holders of interests therein) will have the right to obtain from the Issuer upon request by such Holders (or holders of interests therein) or prospective purchasers, during any period in which the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, or is exempt from reporting pursuant to 12g3-2(b) under the Exchange Act, the information required by paragraph d(4)(i) of Rule 144A in connection with any transfer or proposed transfer of such Notes.

 

SECTION 2.8      Replacement Notes. If a mutilated Definitive Note is surrendered to the Registrar, if a mutilated Global Note is surrendered to the Issuer or if the Holder of a Note claims that such Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and, upon receipt of an Issuer Order, the Trustee shall authenticate a replacement Note in such form as the Note being replaced if the requirements of the Trustee, the Registrar and the Issuer are met. If required by the Trustee, the Registrar and the Issuer, such Holder must provide an indemnity bond or other indemnity, sufficient in the judgment of the Issuer, the Registrar and the Trustee, to protect the Issuer, the Registrar, the Trustee and any Agent from any loss which any of them may suffer if a Note is replaced. The Issuer may charge such Holder for its reasonable, out-of-pocket expenses in replacing a Note, including reasonable fees and expenses of counsel. Every replacement Note is an additional obligation of the Issuer. The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost, stolen or taken Notes.

 

SECTION 2.9      Outstanding Notes. Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except those canceled by it, those delivered to it for cancellation, those reductions in the Global Note effected in accordance with the provisions hereof and those described in this Section as not outstanding. Subject to Section 2.10, a Note does not cease to be outstanding because the Issuer or any of its Affiliates holds the Note.

 

If a Note is replaced pursuant to Section 2.8 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 2.8.

 

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If the principal amount of any Note is considered paid under Section 4.1, it ceases to be outstanding and interest, and Additional Amounts, if any on it cease to accrue.

 

If on a Redemption Date or the Maturity Date the Paying Agent holds cash in euros sufficient to pay all of the principal, interest and Additional Amounts, if any, due on the Notes payable on that date, then on and after that date such Notes cease to be outstanding and interest and Additional Amounts, if any, on such Notes cease to accrue.

 

SECTION 2.10      Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or its Affiliates shall be disregarded, 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 Trust Officer of the Trustee actually knows are so owned shall be disregarded.

 

SECTION 2.11      Temporary Notes. Until permanent Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Definitive Notes upon receipt of an Issuer Order in the form of an Officers’ Certificate of the Issuer. Such Officers’ Certificate shall specify the amount of temporary Definitive Notes to be authenticated and the date on which the temporary Definitive Notes are to be authenticated. Temporary Definitive Notes shall be substantially in the form of permanent Definitive Notes but may have variations that the Issuer considers appropriate for temporary Definitive Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate upon receipt of an Issuer Order pursuant to Section 2.2 permanent Definitive Notes in exchange for temporary Definitive Notes. Holders of temporary Definitive Notes shall be entitled to all of the benefits of this Indenture.

 

SECTION 2.12      Cancellation. The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent, and no one else, shall cancel and, at the written direction of the Issuer, shall dispose of (subject to the record retention requirements of the Exchange Act) all Notes surrendered for transfer, exchange, payment or cancellation; provided, however, that the Trustee may, but shall not be required to, destroy such canceled Notes. Subject to Section 2.8, the Issuer may not issue new Notes to replace Notes that it has paid or delivered to the Trustee for cancellation. If the Issuer shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.12.

 

SECTION 2.13      Defaulted Interest. If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest, plus (to the extent lawful) any interest payable on the defaulted interest, to the Holders thereof as of the original Record Date; provided, however, if such default in payment of interest continues for 30 days, the Issuer shall (in the case of Definitive Notes) establish a subsequent special Record Date, which date shall be the fifteenth day next preceding the date fixed by the Issuer for the payment of defaulted interest. If no special Record Date is required to be established pursuant to the immediately preceding sentence, (i) in the case of Definitive Notes, Holders of record on the original Record Date shall be entitled to such payment of defaulted interest and any such interest payable on the defaulted interest and (ii) in the case of Global Notes, Holders on the Default Interest Payment Date (as defined in the next sentence) shall be entitled to such defaulted interest and any such interest payable on the defaulted interest. The Issuer shall notify the Trustee and the Principal Paying Agent in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment (a “Default Interest Payment Date”), and at the same time the Issuer shall deposit with the Trustee or the Principal Paying Agent 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 or the Principal Paying Agent 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 in this Section 2.13; provided, however, that in no event shall the Issuer deposit monies proposed to be paid in respect of defaulted interest later than 10:00 a.m. London time on the Business Day immediately preceding the proposed Default Interest Payment Date with respect to defaulted interest to be paid on the Note. In the case of Definitive Notes, at least 15 days before the subsequent special Record Date, if applicable, the Issuer shall deliver to Holders in accordance with Section 11.1 a notice that states the subsequent special Record Date, the payment date and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid. In the case of Global Notes, at least 15 days before the Default Interest Payment Date, the Issuer shall deliver to Holders in accordance with Section 11.1 a notice that states the Default Interest Payment Date, the payment date and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid.

 

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SECTION 2.14      ISINs and Common Codes. The Issuer in issuing the Notes may use ISINs or Common Codes, and if so, the Trustee shall use the ISINs and Common Codes in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of such numbers or codes printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Issuer shall promptly notify the Trustee in writing of any change in any ISIN or Common Code.

 

SECTION 2.15      Deposit of Moneys. Prior to 10:00 a.m. London time on the Business Day immediately preceding each interest payment date and Maturity Date, the Issuer shall have deposited with the Trustee or its designated Paying Agent (which shall be the Principal Paying Agent unless otherwise notified to the Issuer by the Trustee) in immediately available funds money sufficient to make cash payments, if any, due on such interest payment date or Maturity Date, as the case may be, on all Notes then outstanding. Such payments shall be made by the Issuer in a timely manner which permits a Paying Agent (including the Principal Paying Agent) to remit payment to the Holders on such Interest Payment Date or Maturity Date, as the case may be. The Issuer shall, prior to 10:00 a.m. London time on the second Business Day prior to the date on which the Principal Paying Agent receives payment, procure that the bank effecting payment for it confirms by tested telex or SWIFT MT100 message to the Principal Paying Agent that an irrevocable payment instruction has been given.

 

SECTION 2.16      Certain Matters Relating to Global Notes. (a) Members of or participants in a Clearing Agency (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Common Depositary or its nominee, or under the Global Note, and the Common Depositary or its nominee may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Common Depositary or its nominees, or impair, as between the Clearing Agency and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Note.

 

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(b)            The holder of a beneficial interest in any Global Note may grant proxies and otherwise authorize any person, including the Clearing Agency and their Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

 

SECTION 2.17      Interest. Interest accrued on the Notes will be payable semi-annually in arrears on August 1 and February 1, commencing August 1, 2015, to Holders of record on the immediately preceding July 15 and January 15. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable.

 

Interest accrued on all Notes then outstanding will be payable in cash.

 

Article III

 

REDEMPTION

 

SECTION 3.1      Optional Redemption. The Notes may be redeemed, as a whole or from time to time in part, upon the terms and at the redemption prices set forth in the Notes. Any redemption pursuant to this Section 3.1 shall be made pursuant to the provisions of this Article III. The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

SECTION 3.2      Notices to Trustee. If the Issuer elects to redeem the Notes pursuant to Paragraphs 7 or 8 of such Notes, it shall notify the Trustee and the Principal Paying Agent in writing of the Redemption Date and the principal amount of Notes to be redeemed at least 10 days but not more than 60 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee). The Issuer shall give notice of redemption as required under the relevant paragraph of the Notes pursuant to which such Notes are being redeemed.

 

SECTION 3.3      Selection of Notes to Be Redeemed. If less than all the Notes are to be redeemed pursuant to its terms or the terms of the Indenture at any time, selection of such Notes for redemption will be made by the Trustee in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed, or in compliance with the requirements of each Clearing Agency, or if such Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through a Clearing Agency or such Clearing Agency prescribes no method of selection, on a pro rata basis, by lot; provided, however, that no Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part. In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 10 nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding Notes not previously called for redemption.

 

SECTION 3.4      Notice of Redemption. At least 10 days but not more than 60 days before a Redemption Date, the Issuer shall deliver to Holders in accordance with Section 11.1, a notice of redemption. Any redemption and notice may, at the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent, and such notice may state that, in the Issuer’s discretion, the redemption date may be delayed until such time as any or all such conditions shall have been satisfied. At the Issuer’s request made at least 10 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee), the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided, however, that the Issuer shall deliver to the Trustee an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the following items. Each notice for redemption shall identify the Notes to be redeemed and shall state:

 

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(a)            the Redemption Date;

 

(b)            the Redemption Prices and the amount of accrued and unpaid interest, if any, and Additional Amounts, if any, to be paid (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, due on the relevant interest payment date);

 

(c)            the Record Date

 

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

 

(e)            that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any;

 

(f)            that, unless the Issuer defaults in making the redemption payment, interest and Additional Amounts, if any, on Notes called for redemption cease to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Notes redeemed;

 

(g)            (i) if any Global Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, interest and Additional Amounts, if any, shall cease to accrue on the portion called for redemption, and upon surrender of such Global Note, the Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unredeemed portion, will be returned and (ii) if any Definitive 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 Definitive Note, a new Definitive Note or Notes in aggregate principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof, upon cancellation of the original Note;

 

(h)            if fewer than all the Notes are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption;

 

(i)            the paragraph of the Notes pursuant to which the Notes are to be redeemed;

 

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

 

(k)            whether the redemption is conditional on any events and, if so, a detailed explanation of such conditions.

 

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SECTION 3.5      Effect of Notice of Redemption. Once notice of redemption is given in accordance with Section 3.4, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any. Upon surrender to the Trustee or Paying Agent, such Notes called for redemption shall be paid at the Redemption Price (which shall include accrued and unpaid interest thereon, if any, and Additional Amounts, if any, to the Redemption Date), but (in the case of Definitive Notes) installments of interest, the maturity of which is on or prior to the Redemption Date, shall be payable to Holders of record at the close of business on the relevant Record Dates.

 

SECTION 3.6      Deposit of Redemption Price. Prior to 10:00 a.m. London time on the Business Day immediately preceding the Redemption Date, the Issuer shall deposit with the Trustee or its designated Paying Agent (which shall be the Principal Paying Agent unless otherwise notified to the Issuer by the Trustee) an amount of cash in euros sufficient to pay the Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any, of all Notes to be redeemed on that date. The Paying Agent (including the Principal Paying Agent) shall promptly return to the Issuer any cash in euros so deposited which is not required for that purpose upon the written request of the Issuer. The Issuer shall, prior to 10:00 a.m. London time on the second Business Day prior to the date on which the Principal Paying Agent receives payment, procure that the bank effecting payment for it confirms by tested telex or SWIFT MT100 message to the Principal Paying Agent that an irrevocable payment instruction has been given.

 

If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the payment of such Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any, interest and Additional Amounts, if any, on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Notes are presented for payment. With respect to Definitive Notes, if a Definitive Note is redeemed on or after an interest Record Date but on or prior to the related interest payment date, then any accrued and unpaid interest and Additional Amounts, 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 Issuer to comply with the preceding paragraph, interest and Additional Amounts, if any, shall be paid on the unpaid principal, from the Redemption Date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.1.

 

SECTION 3.7      Notes Redeemed in Part. Upon surrender and cancellation of a Definitive Note that is redeemed in part, the Issuer shall execute and upon receipt of an Issuer Order the Trustee shall authenticate for the Holder (at the Issuer’s expense) a new Definitive Note equal in principal amount to the unredeemed portion of the Definitive Note surrendered and canceled; provided, however, that each such Definitive Note shall be in a principal amount at maturity of €100,000 or an integral multiple of €1,000 in excess thereof. Upon surrender of a Global Note that is redeemed in part, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the Global Note surrendered; provided, however, that each such Global Note shall be in a principal amount at maturity of €100,000 or an integral multiple of €1,000 in excess thereof.

 

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Article IV

 

COVENANTS

 

SECTION 4.1      Payment of Notes. (a) The Issuer shall pay the principal, premium, if any, interest and Additional Amounts, if any, on the Notes in the manner provided in such Notes and this Indenture. An installment of principal of or interest on the Notes shall be considered paid on the date it is due if the Trustee or the Paying Agent (including the Principal Paying Agent) holds prior to 10:00 a.m. London time on that date money deposited by the Issuer in immediately available funds and designated for, and sufficient to pay the installment in full and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture or the Priority Agreement.

 

(b)            Issuer shall pay, to the extent such payments are lawful, interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and on overdue installments of interest (without regard to any applicable grace periods) and on any Additional Amounts from time to time on demand at the rate borne by the Notes plus 1.0% per annum. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months

 

SECTION 4.2      Maintenance of Office or Agency. The Issuer shall maintain the office or agency (which office may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) required under Section 2.3 where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 11.1. The Issuer and each Guarantor hereby initially designates the office of Smurfit Kappa Packaging LLC, located at 1301 International Parkway, Suite 550, Sunrise, Florida 33323, as its office or agency outside Ireland as required under Section 2.3 hereof.

 

SECTION 4.3      [Intentionally omitted]

 

SECTION 4.4      [Intentionally omitted]

 

SECTION 4.5      Corporate Existence. Except as otherwise permitted by Article V, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership, limited liability or other existence of each of the Issuer’s Subsidiaries in accordance with the respective organizational documents (as the same may be amended from time to time) of each such Person and the rights (charter and statutory) of the Issuer and each of the Issuer’s Subsidiaries; provided, however, that the Issuer shall not be required to preserve any such right, or the corporate, partnership, limited liability or other existence of any of the Issuer’s Subsidiaries, if the Board of Directors of the Issuer shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and each of its Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be, adverse in any material respect to the Holders.

 

SECTION 4.6      Payment of Taxes and Other Claims. The Issuer shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all material taxes, assessments and governmental charges levied or imposed upon it or any of its Subsidiaries or upon the income, profits or property of it or any of its Subsidiaries and (ii) all lawful claims for labor, materials and supplies which, in each case, if unpaid, might by law become a material liability or Restricted Lien (other than a Permitted Lien) upon the property of it or any of its Subsidiaries; provided, however, that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate provision has been made in accordance with IFRS.

 

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SECTION 4.7      Maintenance of Properties and Insurance. (a) The Issuer shall cause all material properties owned by or leased by it or any of its Subsidiaries useful and necessary to the conduct of its business or the business of any of its Subsidiaries to be improved or maintained and kept in normal condition, repair and working order and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in its judgment may be necessary, so that the business carried on in connection therewith may be properly conducted at all times; provided, however, that nothing in this Section 4.7 shall prevent the Issuer or any of its Subsidiaries from discontinuing the use, operation or maintenance of any of such properties, or disposing of any of them, if such discontinuance or disposal is, in the judgment of the Board of Directors of the Issuer or of the board of directors of any Subsidiary of the Issuer concerned, or of an officer (or other agent employed by the Issuer or of any of its Subsidiaries) of the Issuer or any of its Subsidiaries having managerial responsibility for any such property, desirable in the conduct of the business of the Issuer or any Subsidiary of the Issuer, and if such discontinuance or disposal is not adverse in any material respect to the Holders. (b) To the extent available at commercially reasonable rates, the Issuer shall maintain, and shall cause its Subsidiaries to maintain, insurance with responsible carriers against such risks and in such amounts, and with such deductibles, retentions, self-insured amounts and co-insurance provisions, as are customarily carried by similar businesses of similar size.

 

SECTION 4.8      Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries. The Issuer will not cause or permit any of its Subsidiaries that is not a Guarantor, directly or indirectly, to guarantee, assume or in any other manner become liable for the payment of any Indebtedness under the Existing Senior Notes or any other Public Indebtedness, unless, subject to the limitations set forth in this Indenture:

 

(1)            such Subsidiary executes and delivers a supplemental indenture to the Indenture providing for a Guarantee of payment of the Notes by such Subsidiary on the same terms as the guarantee of such Indebtedness within 10 Business Days thereof; provided that if such Indebtedness is by its terms expressly subordinated to the Notes or any Guarantee, any such guarantee, assumption or other liability of such Subsidiary with respect to such Indebtedness shall be subordinated to such Subsidiary’s Guarantee of the Notes at least to the same extent as such Indebtedness is subordinated to the Notes or any other Guarantee; and

 

(2)            such Subsidiary waives, and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Issuer or any other Subsidiary as a result of any payment by such Subsidiary under its Guarantee (unless required to do so under the Priority Agreement);

 

provided that this covenant shall not be applicable to any guarantee of intercompany Indebtedness where the lender under such Indebtedness is party to the Priority Agreement (but only for so long as the Priority Agreement applies to the Notes).

 

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SECTION 4.9      Compliance with Laws. The Issuer shall, and shall cause its Subsidiaries to, comply with all applicable statutes, rules, regulations, orders of the relevant jurisdiction in which they are incorporated or organized or in which they carry on business, all political subdivisions thereof, and of any relevant governmental regulatory authority, in respect of the conduct of their respective businesses and the ownership of their respective properties, except for such noncompliances as would not in the aggregate have a material adverse effect on the financial condition or results of operations of the Issuer and its Subsidiaries taken as a whole.

 

SECTION 4.10      Negative Pledge. The Issuer will not, and will not permit any of its Subsidiaries to, secure any Indebtedness for money borrowed by placing a Lien (other than a Permitted Lien) on any Principal Property now or hereafter owned or leased by the Issuer or any Subsidiary of the Issuer or on any shares of stock of any Subsidiary of the Issuer (a “Restricted Lien”) without equally and ratably securing (or securing on a senior basis, in the case of a Lien securing Indebtedness that is by its terms expressly subordinated to the Notes or any Guarantee) all of the Notes, unless after giving effect thereto the aggregate principal amount of all such Indebtedness secured by a Restricted Lien then outstanding would not exceed an amount equal to 15% of Consolidated Net Tangible Assets. The restrictions set forth in the preceding sentence will not apply to any Permitted Lien, and all Indebtedness secured by a Permitted Lien shall be excluded in computing the amount of Indebtedness secured by a Lien outstanding for purposes of this covenant.

 

Any Lien created for the benefit of the holders of the Notes pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien relating to such Indebtedness that gave rise to the obligation to so secure the Notes.

 

SECTION 4.11      Waiver of Stay; Extension or Usury Laws. The Issuer and each Guarantor covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer or any Guarantor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture, and (to the extent that it may lawfully do so) the Issuer and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants that it will not 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 had been enacted.

 

SECTION 4.12      [Intentionally omitted]

 

SECTION 4.13      [Intentionally omitted]

 

SECTION 4.14      [Intentionally omitted]

 

SECTION 4.15      [Intentionally omitted]

 

SECTION 4.16      [Intentionally omitted]

 

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SECTION 4.17      Reports. (a) For so long as any Notes are outstanding, the Issuer will provide to each of the Trustee and the Holders of Notes and potential purchasers of Notes:

 

(1)            within 120 days after the end of SKG’s fiscal year, annual reports containing the following information: (a) audited consolidated balance sheet of SKG as of the end of the two most recent fiscal years and audited consolidated income statements and statements of cash flow of SKG for the two most recent fiscal years, including complete footnotes to such financial statements and the report of the independent auditors on the financial statements; (b) an operating and financial review of the audited financial statements, including a discussion of the results of operations, financial condition and liquidity and capital resources, and a discussion of material commitments and contingencies and critical accounting policies; (c) a description of the industry, business, management and shareholders of SKG, all material affiliate transactions, Indebtedness and material financing arrangements and a description of all material contractual arrangements, including material debt instruments; and (d) risk factors and material recent developments;

 

(2)            within 60 days following the end of each of the first three fiscal quarters in each fiscal year of SKG, quarterly reports containing the following information: (a) an unaudited condensed consolidated balance sheet as of the end of such quarterly period and unaudited condensed statements of income and cash flow for the quarterly and year- to-date periods ending on the unaudited condensed balance sheet date, and the comparable prior year periods for SKG, together with condensed footnote disclosure; (b) an operating and financial review of the unaudited financial statements, including a discussion of the consolidated financial condition and results of operations of SKG and any material change between the current quarterly period and the corresponding period of the prior year; (c) material developments in the business of SKG and its Subsidiaries; (d) financial developments and trends in the business in which SKG and its Subsidiaries are engaged; and (e) material recent developments;

 

(3)            promptly after the occurrence of (a) any senior management change at SKG; (b) any change in the auditors of SKG; (c) any resignation of a member of the Board of Directors of SKG as a result of a disagreement with SKG; (d) the entering into an agreement that will result in a Change of Control; or (e) any material events that SKG or any of its Subsidiaries announces publicly, in each case, a report containing a description of such events.

 

(b)            For so long as any Notes are outstanding, the Issuer will provide to the Trustee such other information as SKG is required to make publicly available under the requirements of the Irish Stock Exchange or the London Stock Exchange as a result of having its ordinary shares admitted for trading on such exchanges. Upon complying with the public reporting requirements of the Irish Stock Exchange (regardless of whether SKG’s ordinary shares are admitted for trading on either such exchange, provided that such requirements include an obligation to prepare and make publicly available annual reports, information, documents and other reports with the Irish Stock Exchange or London Stock Exchange, the Issuer will be deemed to have complied with the provisions contained in clauses (1) through (3) of Section 4.17(a).

 

(c)            Notwithstanding the foregoing, the Issuer will be deemed to have provided such information to the Trustee, the Holders of the Notes and prospective purchasers if such information referenced above in clauses (a)(1) through (a)(3) and (b) of this Section 4.17 has been posted on SKG’s website.

 

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SECTION 4.18      [Intentionally omitted]

 

SECTION 4.19      Change of Con(a) If a Change of Control Repurchase Event occurs, each Holder of Notes will have the right to require the Issuer to repurchase all or any part (equal to €100,000 and integral multiples of €1,000 in excess thereof in the case of Notes that have denominations larger than €100,000) of that Holder’s Notes pursuant to an offer (the “Change of Control . Offer”) on the terms set forth in this Indenture. In the Change of Control Offer, the Issuer will offer a payment (the “Change of Control Payment”) in cash equal to 101% of the aggregate principal amount of each of the Notes repurchased plus accrued and unpaid interest and Additional Amounts, if any, thereon, to the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Issuer will mail a notice to each Holder and the Trustee describing the transaction or transactions that constitute the Change of Control Repurchase Event and offering to repurchase Notes on a date (the “Change of Control Payment Date”) specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by this Indenture and described in such notice. The Issuer will comply with the requirements of Section 14(e) of the Exchange Act to the extent applicable and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.19 by virtue of such conflict.

 

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

 

(1)            accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;

 

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

 

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

 

(c)            The Paying Agent will promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes and the Trustee or the Registrar will, upon receipt of an Issuer Order, promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of €100,000 or an integral multiple of €1,000 in excess thereof.

 

(d)            In the case of Definitive Notes, if the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amounts, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest or Additional Amounts will be payable to Holders who tender pursuant to the Change of Control Offer; in the case of Global Notes, the Issuer will pay accrued and unpaid interest to the Change of Control Payment Date to the Holder on such date.

 

(e)            The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date; provided, that if and for so long as the Notes are listed on the Irish Stock Exchange and the rules of the Irish Stock Exchange so require, the Issuer will give notice with respect to the results of the Change of Control Offer to the Companies Announcement Office of the Irish Stock Exchange in Dublin.

 

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(f)            This Section 4.19 will be applicable regardless of whether any other provisions of this Indenture are applicable.

 

(g)            The Issuer will not be required to make a Change of Control Offer following a Change of Control Repurchase Event if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with this Section 4.19 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) a notice of redemption for all of the outstanding Notes has been given pursuant to this Indenture under Section 3.4 unless and until there is a default in the payment of the applicable redemption price, plus accrued and unpaid interest to the proposed redemption date. Notwithstanding the foregoing, a Change of Control Offer may be made in advance of a Change of Control Repurchase Event, conditional upon the Change of Control, so long as a definitive agreement has been executed that contains terms and provisions that would otherwise result in a Change of Control upon completion of the transactions contemplated thereby.

 

SECTION 4.20      Additional Amounts. (a) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on the Notes or the Guarantees is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the Principal Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Principal Paying Agent whether such payment of principal, premium, if any, or interest on the Notes (whether or not in the form of Definitive Notes) or any Guarantee shall be made to the Holders without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of Taxes is then required by law.

 

(b)            If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes or the Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”).

 

(c)            The Payor and each Guarantor or successor Guarantor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon written request, the Payor and each Guarantor will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per €1,000 principal amount of the Notes. Copies of such documentation will be available for inspection during ordinary business hours at the office of the Trustee by the Holders of the Notes upon request.

 

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(d)            Wherever in this Indenture or the Notes there are mentioned, in any context, (i) the payment of principal, (ii) purchase prices in connection with a purchase of Notes, (iii) interest or (iv) any other amount payable on or with respect to any of the Notes or the Guarantees, such reference shall be deemed to include payment of Additional Amounts as described in this Indenture and the Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

(e)            The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without gross negligence, willful default or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.20.

 

(f)            Obligations under this Section 4.20 will survive any termination, defeasance or discharge of this Indenture.

 

SECTION 4.21      Payment of Non-Income Taxes and Similar Charges. The Payor and each Guarantor or successor Guarantor will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of any Notes or any other document or instrument referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside Ireland, the United States or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes.

 

SECTION 4.22      Compliance Certificate; Notice of Default. The Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year and upon reasonable request by the Trustee, an Officers’ Certificate stating that a review of the activities of the Issuer and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuer has kept, observed, performed and fulfilled, and has caused each of its Subsidiaries to keep, observe, perform and fulfill its obligations under this Indenture and further stating, as to each such Officer signing such certificate, that, to the best of his or her knowledge, the Issuer during such preceding fiscal year has kept, observed, performed and fulfilled, and has caused each of its Subsidiaries to keep, observe, perform and fulfill each and every such covenant (as applicable) contained in this Indenture and no Default occurred during such year and at the date of such certificate there is no Default which has occurred and is continuing or, if such signers do know of such Default, the certificate shall describe its status, with particularity and that, to the best of his or her knowledge, no event has occurred and remains by reason of which payments on the account of the principal of or interest, if any, or Additional Amounts, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action each is taking or proposes to take with respect thereto. The Officers’ Certificate shall also notify the Trustee should the Issuer elect to change the manner in which it fixes its fiscal year end. Upon becoming aware of, and as of such time that the Issuer should reasonably have become aware of, a Default or Event of Default, the Issuer also shall promptly deliver to the Trustee written notice of any events which would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.

 

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SECTION 4.23      [Intentionally omitted]

 

SECTION 4.24      [Intentionally omitted]

 

SECTION 4.25      [Intentionally omitted]

 

SECTION 4.26      [Intentionally omitted]

 

SECTION 4.27      Further Instruments and Acts. Upon request of the Trustee, the Issuer and each Guarantor will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.

 

Article V

 

SUCCESSOR CORPORATION

 

SECTION 5.1      Consolidation, Merger, and Sale of Assets. The Issuer may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Issuer is the surviving corporation); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:

 

(1)            either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, conveyance, lease or other disposition shall have been made (the “Successor Issuer”) is a company organized or existing under the laws of the United States, any state thereof or the District of Columbia or any member of the European Union;

 

(2)            the Successor Issuer (if other than the Issuer) assumes all the obligations of the Issuer under the Notes, the Indenture and the Priority Agreement pursuant to agreements reasonably satisfactory to the Trustee;

 

(3)            immediately after such transaction, no Default or Event of Default exists;

 

(4)            each Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations in respect of the Indenture and the Notes (unless such Guarantee shall be released in connection with the transaction and otherwise in compliance with the Indenture); and

 

(5)            the Issuer has delivered to the Trustee opinions of tax counsel reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee stating that (A) any payment of principal, redemption price or purchase price of, interest, premium, if any, and Additional Amounts, if any, on the Notes by the Issuer or the Successor Issuer to a Holder (or beneficial owner, if not a Holder) after the consolidation or merger, conveyance, transfer or lease of assets will be exempt from the Taxes defined under “—Withholding Taxes,” above, and (B) no other taxes on income (including taxable capital gains) will be payable under the laws of the Relevant Taxing Jurisdiction by a Holder (or beneficial owner, if not a Holder) who is not and is not deemed to be a resident of the Relevant Taxing Jurisdiction and does not carry on a trade in the Relevant Taxing Jurisdiction through a branch, agency or permanent establishment to which the Notes of that Holder or beneficial owner are attributable (or, as the case may be, does not carry on any business activities through a branch, agency or permanent establishment in such Relevant Taxing Jurisdiction) in respect of the acquisition, ownership or disposition of Notes, including the receipt of principal, interest, premium, if any, or Additional Amounts, if any, pursuant to the Notes.

 

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For purposes of this covenant, the sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of a Person, which properties and assets, if held by such Person instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Person on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Person.

 

SECTION 5.2      Successor Corporation Substituted. If any such consolidation, merger, sale, assignment, transfer, conveyance or disposition is consummated without causing an Event of Default, then the Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such Successor Issuer had been named as the Issuer herein, and thereafter (except in the case of a sale, assignment, transfer, lease, conveyance or other disposition) the predecessor corporation will be relieved of all further obligations and covenants under this Indenture and the Notes.

 

Article VI

 

DEFAULT AND REMEDIES

 

SECTION 6.1      Events of Default. Whenever used herein with respect to the Notes, “Event of Default” means any one of the following events which shall have occurred and be continuing:

 

(1)            a default for 30 days in the payment when due of interest on, or Additional Amounts with respect to, the Notes;

 

(2)            a default in payment when due of the principal of, or premium, if any, on the Notes;

 

(3)            a failure by the Issuer or any of its Subsidiaries for 60 days after notice by the Trustee or by the Holders of at least 25% in principal amount of the Notes to comply with any of the other agreements in this Indenture;

 

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(4)            a default under any mortgage, indenture or instrument under which there is issued and outstanding any Indebtedness for money borrowed by the Issuer or any of its Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the date of this Indenture, if that default:

 

(a)is caused by a failure to pay principal at the final stated maturity of such Indebtedness (after giving effect to any applicable grace period provided in the Indebtedness) (a “Payment Default”); or

 

(b)results in the acceleration of such Indebtedness prior to its express maturity,

 

and in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates €50.0 million or more;

 

(5)            (A) a court having jurisdiction in the premises enters a decree or order for relief in respect of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) appointment of a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary or (iii) the winding up or liquidation of the affairs of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; or (B) the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary (i) commences a voluntary case (including taking any action for the purpose of winding up) under any applicable bankruptcy, insolvency, examination, court protection or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary or (iii) effects any general assignment for the benefit of creditors.

 

SECTION 6.2      Acceleration. In the case of an Event of Default arising under Section 6.1(5) hereof, the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all the Notes shall become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee (upon request of Holders of at least 25% in principal amount of Notes then outstanding) shall by notice in writing to the Issuer or the Holders of at least 25% in principal amount of the then outstanding Notes may by notice in writing to the Issuer and the Trustee, declare all Notes to be due and payable, and any such notice shall specify the respective Event of Default and that such notice is a “notice of acceleration” (the “Acceleration Notice”), and the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all the Notes shall become immediately due and payable. In the event of any Event of Default specified in Section 6.1(4), such Event of Default and all consequences thereof (including any acceleration or resulting payment default) shall be annulled, waived and rescinded automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose, (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged, (y) the creditors on such Indebtedness have rescinded or waived the acceleration, notice or action, as the case may be, giving rise to such Event of Default or (z) if the default that is the basis for such Event of Default has been cured.

 

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SECTION 6.3      Other Remedies. Subject to Section 11.3(c), if an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or, premium, if any, interest or Additional Amounts, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

SECTION 6.4      The Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto.

 

SECTION 6.5      Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Notes is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent or subsequent assertion or employment of any other appropriate right or remedy.

 

SECTION 6.6      Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Notes.

 

SECTION 6.7      Waiver of Past Defaults. Subject to Sections 6.10 and 9.2, at any time after a declaration of acceleration with respect to the Notes as described in Section 6.2, the Holders of at least a majority in principal amount of the outstanding Notes by written notice to the Trustee, may, on behalf of the Holders of all the Notes, waive any existing Default or Event of Default (except with respect to a continuing Default or Event of Default in the payment of principal, premium, interest, Additional Amounts, if any, and other monetary obligations on the Notes) and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, interest, Additional Amounts, if any, and other monetary obligations on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. Such waiver shall not excuse a continuing Default or Event of Default in the payment of interest, premium, if any, principal or Additional Amounts, if any, on such Note held by a non-consenting Holder, or in respect of a covenant or a provision which cannot be amended or modified without the consent of all Holders. The Issuer shall deliver to the Trustee an Officers’ Certificate stating that the requisite percentage of Holders has consented to such waiver and attaching copies of such consents. When a Default or Event of Default is waived, it is cured and ceases.

 

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SECTION 6.8      Control by Majority. Subject to Section 2.10, the Holders of not less than a majority in principal amount of the outstanding Notes may, by written notice to the Trustee, direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. Subject to Section 7.1, however, the Trustee may refuse to follow any direction that conflicts with any law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of another Holder of Notes, or that would involve the Trustee in liability or expense; provided, however, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Prior to taking any action under this Indenture, the Trustee will be entitled to indemnification or security satisfactory to it in its sole discretion against all losses, liabilities, costs and expenses incurred by it in taking or not taking such action.

 

SECTION 6.9      Limitation on Suits. Except to enforce the right to receive payment of principal, premium, if any, interest when due and Additional Amounts, if any, no Holder may pursue any remedy with respect to this Indenture or the Notes, unless:

 

(1)            such Holder has previously given the Trustee written notice that an Event of Default is continuing;

 

(2)            Holders of at least 25% in principal amount of the outstanding Notes have requested the Trustee in writing to pursue the remedy;

 

(3)            such Holders have offered the Trustee security or indemnity reasonably satisfactory to the Trustee, against any loss, liability or expense;

 

(4)            the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of such security or indemnity; and

 

(5)            the Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.

 

SECTION 6.10      Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including Section 8.9 hereof), the right of any Holder to receive payment of principal of, premium, if any, interest and Additional Amounts, if any, on a Note, on or after the respective due dates expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

SECTION 6.11      Collection Suit by Trustee. If an Event of Default in payment of principal, premium, if any, interest or Additional Amounts, if any, specified in clause (1) or clause (2) of Section 6.1 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or any other obligor on the Notes for the whole amount of principal and accrued interest remaining unpaid and Additional Amounts, if any, together with interest on overdue principal and, to the extent that payment of such interest is lawful, interest on overdue installments of interest, in each case at the rate per annum borne by the Notes and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6.

 

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SECTION 6.12      Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or its property or other obligor on the Notes, its creditors and its property and shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and any custodian in any such judicial proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6 hereof 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 which the Holders of the Notes may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

 

SECTION 6.13      Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:

 

First: to the Trustee, the Agents and their agents and attorneys for amounts due under Section 7.6, including payment of all compensation, fees, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, interest and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, interest and Additional Amounts, if any, respectively; and Third: to the Issuer or any other obligor on the Notes, as their interests may appear, or as a court of competent jurisdiction may direct.

 

The Trustee, upon prior notice to the Issuer, may fix a record date and a payment date for any payment to Holders pursuant to this Section 6.13; provided that the failure to give any such notice shall not affect the establishment of such record date or payment date for Holders pursuant to this Section 6.13.

 

SECTION 6.14      Restoration of Rights and Remedies. If the Trustee or any Holder of any Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of Notes shall continue as though no such proceeding had been instituted.

 

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SECTION 6.15      Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.15 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.10, or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes.

 

SECTION 6.16      Additional Payments. In the case of any Event of Default occurring by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Issuer in bad faith with the intention of avoiding payment of the premium that the Issuer would have had to pay if the Issuer then had elected to redeem the Notes pursuant to the optional redemption provisions of this Indenture or was required to repurchase the Notes, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of the Notes.

 

Article VII

 

TRUSTEE

 

SECTION 7.1      Duties of Trustee. (a) If an Event of Default actually known to a Trust Officer of the Trustee 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 their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request of any of the Holders of Notes, unless they shall have offered to the Trustee indemnity or security to its satisfaction against any loss, liability, cost or expense.

 

(b)            Except during the continuance of an Event of Default actually known to the Trustee:

 

(1)            The Trustee and the Agents will perform only those duties as are specifically set forth herein and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Agents.

 

(2)            In the absence of bad faith on their part, the Trustee and the Agents may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions and such other documents delivered to them pursuant to Section 11.3 furnished to the Trustee or Agent and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are required to be furnished to the Trustee or the Agents, the Trustee or the Agents, as applicable, shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

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(c)            The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own bad faith or willful misconduct, except that:

 

(1)            This paragraph does not limit the effect of subsection (b) of this Section 7.1.

 

(2)            Neither the Trustee nor Agent shall be liable for any error of judgment made in good faith by a Trust Officer of such Trustee or Agent, unless it is proved that the Trustee or such Agent was grossly 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 6.8.

 

(d)            No provision of this Indenture shall require the Trustee or any Agent to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties hereunder or to take or omit to take any action under this Indenture or take any action at the request or direction of Holders if it shall have reasonable grounds for believing that repayment of such funds is not assured to it or it does not receive an indemnity or security satisfactory to it in its sole discretion against such risk, liability, loss, fee or expense which might be incurred by it in compliance with such request or direction.

 

(e)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to subsections (a), (b), (c) and (d) of this Section 7.1.

 

(f)            Neither the Trustee nor the Agents shall be liable for interest on any money received by it except as the Trustee and any Agent may agree in writing with the Issuer. Money held in trust by the Trustee or any Agent need not be segregated from other funds except to the extent required by law.

 

(g)            Any provision hereof relating to the conduct or affecting the liability of or affording protection to the Trustee or Agent shall be subject to the provisions of this Section 7.1.

 

(h)            The rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified, are extended to, and shall be enforceable by the Trustee in each of its capacities it which it may serve, and to each Agent, custodian and other person employed to act hereunder.

 

SECTION 7.2      Rights of Trustee. Subject to Section 7.1:

 

(a)            The Trustee and each Agent may rely conclusively on and shall be protected from acting or refraining from acting based upon any document believed by them to be genuine and to have been signed or presented by the proper person. Neither the Trustee nor any Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document, but the Trustee or its Agent, as the case may be, in its discretion, may make reasonable further inquiry or investigation into such facts or matters stated in such document and if the Trustee or its Agent as the case may be, shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, at reasonable times during normal business hours, personally or by agent or attorney. The Trustee shall not be deemed to have notice or any knowledge of any matter (including Defaults or Events of Default) unless a Trust Officer assigned to and working in the Trustee’s Trust & Security Services office has actual knowledge thereof or unless written notice thereof is received by the Trustee, attention: Trust & Security Services and such notice references the Notes generally, the Issuer or this Indenture.

 

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(b)            Any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate or Issuer Order and any resolution of the Board of Directors of the Issuer, as the case may be, may be sufficiently evidenced by a Board Resolution.

 

(c)            Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both, which shall conform to the provisions of Sections 11.3 and 11.4. Neither the Trustee nor any Agent shall be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.

 

(d)            The Trustee and any Agent may act through their attorneys and agents and shall not be responsible for the misconduct or negligence of any agent (other than an agent who is an employee of the Trustee or such Agent) appointed with due care.

 

(e)            The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers conferred upon it by this Indenture; provided, however, that the Trustee’s conduct does not constitute willful misconduct, gross negligence or bad faith.

 

(f)            The Trustee or any Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

(g)            Subject to Section 9.2, the Trustee may (but shall not be obligated to), without the consent of the Holders, give any consent, waiver or approval required by the terms hereof, but shall not without the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding (i) give any consent, waiver or approval or (ii) agree to any amendment or modification of this Indenture, in each case, that shall have a material adverse effect on the interests of any Holder. The Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any consent, waiver, approval, amendment or modification shall have a material adverse effect on the interests of any Holder.

 

SECTION 7.3      Individual Rights of Trustee. The Trustee or any Agent in its respective individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or its respective Affiliates with the same rights it would have if it were not the Trustee or an Agent. However, in the event that the Trustee acquires any conflicting interest, it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee or resign. Any Agent may do the same with like rights. The Trustee must comply with Sections 7.9 and 7.10.

 

SECTION 7.4      Trustee’s Disclaimer. The Trustee and the Agents shall not be responsible for and make no representation as to the validity, effectiveness, correctness or adequacy of this Indenture, any Guarantee, the Priority Agreement or the offering materials related to this Indenture or the Notes; it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision hereof; it shall not be responsible for the use or application of any money received by any Agent and it shall not be responsible for any statement or recital herein of the Issuer, or any document issued in connection with the sale of Notes or any statement in the Notes other than the Trustee’s certificate of authentication.

 

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SECTION 7.5      Notice of Default. If an Event of Default occurs and is continuing and a Trust Officer of the Trustee receives actual notice of such event, the Trustee shall mail to each Holder, as their names and addresses appear on the list of Holders described in Section 2.5, notice of the uncured Default or Event of Default within 90 days after the Trustee receives such notice. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, interest or Additional Amounts, if any, on any Note, including the failure to make payment on the Change of Control Payment Date pursuant to a Change of Control Offer, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interest of the Holders.

 

SECTION 7.6      Compensation and Indemnity. The Issuer shall pay to the Trustee and the Agents from time to time such reasonable compensation as the Issuer and the Trustee shall from time to time agree upon in writing for its acceptance of this Indenture and services hereunder. The Trustee’s and the Agents’ compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and the Agent upon request for all reasonable disbursements, expenses and advances (including reasonable fees and expenses of counsel) incurred or made by it in addition to the compensation for their services, except any such disbursements, expenses and advances as may be attributable to the Trustee’s or any Agent’s gross negligence, willful misconduct or bad faith. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and Agents’ accountants, experts and counsel and any taxes or other expenses incurred by a trust created pursuant to Section 8.4 hereof.

 

The Issuer agrees to pay the reasonable fees and expenses of the Trustee’s legal counsel, Latham & Watkins LLP, no later than the Closing Date in connection with its review, preparation and delivery of this Indenture and related documentation.

 

The Issuer shall indemnify each of the Trustee, any predecessor Trustee and the Agents (which, for purposes of this paragraph, include such Trustee’s and Agents’ affiliates, officers, directors, employees and agents) and in any other capacity the Trustee may serve hereunder for, and hold them harmless against, any and all loss, damage, claim, expense or liability including taxes (other than taxes based on the income of the Trustee) incurred by the Trustee or an Agent without gross negligence, willful misconduct or bad faith on its part, as determined by a court of competent jurisdiction in a final non-appealable decision in connection with acceptance of administration of this trust and performance of its duties under this Indenture, including the reasonable expenses and attorneys’ fees and expenses of defending itself against any claim of liability arising hereunder. The Trustee and the Agents shall notify the Issuer promptly of any claim asserted against the Trustee or such Agent for which it may seek indemnity. However, the failure by the Trustee or the Agent to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee or such Agent shall cooperate in the defense (and may employ its own counsel reasonably satisfactory to the Trustee) at the Issuer’s expense. The Trustee or such Agent may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made without its written consent, which consent shall not be unreasonably withheld.

 

To secure the Issuer’s payment obligations in this Section 7.6, the Trustee and the Agents shall have a senior Lien prior to the Notes against all money or property held or collected by the Trustee and the Agents, in its capacity as Trustee or Agent, except money or property held in trust to pay principal or premium, if any, Additional Amounts, if any, or interest on particular Notes.

 

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When the Trustee or an Agent incurs expenses or renders services after the occurrence of an Event of Default specified in clause (7) of Section 6.1, the expenses (including the reasonable fees and expenses of its agents and counsel) and the compensation for the services shall be preferred over the status of the Holders in a proceeding under any Bankruptcy Law and are intended to constitute expenses of administration under any Bankruptcy Law. The Issuer’s obligations under this Section 7.6 and any claim arising hereunder shall survive the termination of this Indenture, the resignation or removal of any Trustee or Agent, the discharge of the Issuer’s obligations pursuant to Article VIII and any rejection or termination under any Bankruptcy Law.

 

SECTION 7.7      Replacement of Trustee. The Trustee and any Agent may resign at any time upon 30 days’ prior written notice to the Issuer. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee or Agent by so notifying the Issuer and the Trustee or such Agent, as the case may be, in writing and may appoint a successor trustee or agent with the Issuer’s consent. A resignation or removal of the Trustee or any Agent and appointment of a successor Trustee or Agent, as the case may be, shall become effective only upon the successor Trustee’s or Agent’s acceptance of appointment, as the case may be, as provided in this section. The Issuer may remove the Trustee or an Agent if:

 

(1)            the Trustee or Agent, as the case may be, fails to comply with Section 7.9;

 

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

 

(3)            a receiver or other public officer takes charge of the Trustee or Agent, as the case may be, or its respective property; or

 

(4)            the Trustee or Agent, as the case may be, becomes incapable of acting with respect to its duties hereunder.

 

If the Trustee or an Agent resigns or is removed or if a vacancy exists in the office of Trustee or Agent for any reason, the Issuer shall notify each Holder of such event and shall promptly appoint a successor Trustee or Agent, as the case may be. Within one year after the successor Trustee or Agent takes office, the Holders of a majority in principal amount of the then outstanding Notes may, with the Issuer’s consent, appoint a successor Trustee or Agent, as the case may be, to replace the successor Trustee or Agent appointed by the Issuer.

 

A successor Trustee or Agent, as the case may be, shall deliver a written acceptance of its appointment to the retiring Trustee or Agent and to the Issuer. Immediately after that, the retiring Trustee or Agent, as the case may be, shall transfer, after payment of all sums then owing to the Trustee or Agent, as the case may be, pursuant to Section 7.6, all property held by it as Trustee or Agent to the successor Trustee or Agent, subject to the Lien provided in Section 7.6, the resignation or removal of the retiring Trustee or Agent, as the case may be, shall become effective, and the successor Trustee or Agent, as the case may be, shall have all the rights, powers and duties of the Trustee or Agent under this Indenture. A successor Trustee or Agent shall mail notice of its succession to each Holder.

 

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

 

If the Trustee or Agent 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 or Agent, as the case may be, and the appointment of a successor thereto.

 

Notwithstanding replacement of the Trustee or Agent pursuant to this Section 7.7, the Issuer’s obligations under Section 7.6 shall continue for the benefit of the retiring Trustee or Agent, as the case may be, and the Issuer shall pay to any replaced or removed Trustee or Agent all amounts owed under Section 7.6 upon such replacement or removal.

 

SECTION 7.8      Successor Trustee by Merger, etc. If the Trustee or Agent consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall, if such resulting, surviving or transferee corporation is otherwise eligible hereunder, be the successor Trustee. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by consolidation, merger or conversion to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

 

SECTION 7.9      Eligibility; Disqualification. This Indenture shall at all times have a Trustee that is an entity organized and doing business under the laws of the United States or any state thereof, or a Member State of the European Union or a political subdivision thereof, that is authorized under examination by federal or state authorities or by the authorities of a Member State of the European Union or a political subdivision thereof. No obligor under the Notes or Person directly controlling, controlled by, or under common control with such obligor shall serve as Trustee.

 

SECTION 7.10      Disqualification; Conflicting Interests. Within 90 days after becoming aware that a material conflict of interest exists between the Trustee’s role as a trustee and any other capacity, the Trustee shall either (i) eliminate such conflict of interest or (ii) resign from office; provided, however, that this Indenture, the Notes and the Guarantees shall remain valid notwithstanding a material conflict of interest of the Trustee.

 

SECTION 7.11      [Intentionally omitted]

 

SECTION 7.12      Force Majeure. In no event shall the Trustee or Agent, in each of its capacities hereunder, be liable for any failure or delay in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo and government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services or the obligations contemplated by this Indenture.

 

SECTION 7.13      Consequential Loss. Notwithstanding anything to the contrary in this Indenture, in no event shall the Trustee or Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of such loss or damage and regardless of the form of action.

 

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Article VIII

 

SATISFACTION AND DISCHARGE OF INDENTURE

 

SECTION 8.1      Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, with respect to the Notes, elect to have either Section 8.2 or 8.3 be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.

 

SECTION 8.2      Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.2, the Issuer shall be deemed to have been discharged from its obligations with respect to all outstanding Notes and the Guarantors shall be deemed to have been discharged from their obligations with respect to the Guarantees, in each case on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged all the obligations relating to the outstanding Notes and the Notes shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.6, Section 8.8 and the other Sections of this Indenture referred to below in this Section 8.2, and to have satisfied all of their other obligations under such Notes, the Guarantees and this Indenture and cured all then existing Events of Default (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:

 

(1)            the rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, interest and Additional Amounts, if any, on such Notes when such payments are due (including on a Redemption Date) from the trust created pursuant to this Indenture;

 

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

 

(3)            the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s and the Guarantors’ obligations in connection therewith set forth in Article VII hereof; and

 

(4)            this Article VIII and the obligations set forth in Section 8.6 hereof.

 

Subject to compliance with this Article VIII, the Issuer may exercise its option under Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 with respect to the Notes. If the Issuer exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.

 

SECTION 8.3      Covenant Defeasance. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.3, the Issuer and the Guarantors shall be released from any obligations under the covenants contained in Sections 4.5 (other than with respect to the Issuer), 4.10, 4.17, 4.19 and 4.27 hereof with respect to the outstanding Notes 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).

 

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For the purposes hereof, such Covenant Defeasance means that, (i) with respect to the outstanding Notes, the Issuer and the Guarantors 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 (ii) payment on the Notes may not be accelerated because of an Event of Default specified in clause (3) (insofar as it relates to Sections 4.5 (other than with respect to the Issuer), 4.8, 4.10, 4.17, 4.19, and 4.27 hereof), (4) and (5) (other than with respect to the Issuer) of Section 6.1 hereof.

 

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 Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in euros in such amounts as will be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay the principal of, interest, premium and Additional Amounts, if any, on the outstanding Notes on the stated maturity or on the applicable redemption date, as the case may be, and the Issuer must specify whether the Notes are being defeased to maturity or to a particular redemption date;

 

(2)            in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee (x) an Opinion of Counsel in the United States confirming that (A) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for United States federal income tax purposes as a result of such Legal Defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; and (y) an Opinion of Counsel in Ireland to the effect that (A) the Holders of the outstanding Notes will not recognize income, gain or loss for Irish income tax purposes as a result of such Legal Defeasance and will be subject to Irish income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred and (B) payments from the defeasance trust will be free and exempt from any and all withholding and other income taxes of whatever nature imposed or levied by or on behalf of Ireland or any political subdivision thereof or therein having the power to tax;

 

(3)            in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee (x) an Opinion of Counsel in the United States confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for United States federal income tax purposes as a result of such Covenant Defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; and (y) an Opinion of Counsel in Ireland to the effect that (A) the Holders of the outstanding Notes will not recognize income, gain or loss for Irish income tax purposes as a result of such Covenant Defeasance and will be subject to Irish income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred and (B) payments from the defeasance trust will be free and exempt from any and all withholding and other income taxes of whatever nature imposed or levied by or on behalf of Ireland or any political subdivision thereof or therein having the power to tax;

 

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(4)            no Default or Event of Default shall have occurred and be continuing either: (x) on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit); or (y) insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the later of (A) the 91st day after the date of deposit or (B) the day immediately following the last day on which payment of or the deposit with respect to any such Note may be set aside as a preferential payment under applicable law;

 

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

 

(6)            the Issuer must have delivered to the Trustee an Opinion of Counsel in the United States and Ireland to the effect that, assuming no intervening bankruptcy or insolvency of the Issuer between the date of deposit and the 91st day following the deposit or, if longer, the day immediately following the last day on which the deposit may be set aside as a preferential payment under U.S. or Irish law (including section 286 of the Companies Act 1963), and assuming that no Holder is an “insider” or a “connected person” of the Issuer under U.S. or Irish bankruptcy law, after such day following the deposit, the trust funds will not be subject to the effect of any U.S. or Irish bankruptcy, insolvency, reorganization, examinership or similar laws affecting creditors’ rights generally;

 

(7)            the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and

 

(8)            the Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

SECTION 8.5      Satisfaction and Discharge of Indenture. This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder when:

 

(1)            either (i) all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Issuer) have been delivered to the Trustee for cancellation; or (ii) all Notes that have not been delivered to the Trustee or the Registrar for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable at their stated maturity within one year, or if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee, and cash in euro in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee or the Registrar for cancellation for principal, premium and Additional Amounts, if any, and accrued interest to the date of maturity or redemption;

 

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(2)            no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under any other Indebtedness in a principal amount in excess of €50.0 million;

 

(3)            the Issuer and each Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and

 

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

 

SECTION 8.6      Survival of Certain Obligations. Notwithstanding the satisfaction and discharge of this Indenture and of the Notes and the Guarantees referred to in Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Issuer, each Guarantor and the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 4.1, 4.2, 4.5 (only with respect to the Issuer), 4.6, 4.7, 4.9, 4.11, 4.20, 4.21, 4.22, 6.10, Article VII, Article VIII and Section 11.11 shall survive until the Notes are no longer outstanding, and thereafter the obligations of the Issuer and the Trustee under Articles VII and VIII shall survive. Nothing contained in this Article VIII shall abrogate any of the obligations or duties of the Trustee under this Indenture.

 

SECTION 8.7      Acknowledgment of Discharge by Trustee. Subject to Section 8.10, after (i) the conditions of Section 8.4 or 8.5 have been satisfied, (ii) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer and (iii) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee upon written request shall acknowledge in writing the discharge of all of the Issuer’s obligations under this Indenture except for those surviving obligations specified in this Article VIII.

 

SECTION 8.8      Application of Trust Moneys. All cash in euros deposited with the Trustee pursuant to Section 8.4 or 8.5 in respect of Notes shall be held in trust and applied by it, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Notes of all sums due and to become due thereon for principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash deposited pursuant to Section 8.4 or 8.5 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 outstanding Notes.

 

SECTION 8.9      Repayment to the Issuer; Unclaimed Money. The Trustee and any Paying Agent shall promptly pay or return to the Issuer upon Issuer Order any cash held by them at any time that are not required for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes for which cash has been deposited pursuant to Section 8.4 or 8.5.

 

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Any money held by the Trustee or any Paying Agent under this Article, in trust for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on any Note and remaining unclaimed for two years after such principal, premium, if any, interest and Additional Amounts, if any, has become due and payable shall be paid to the Issuer upon Issuer Order or if then held by the Issuer shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer give notice to the Holders or, if and so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange, and the rules of the Global Exchange Market of the Irish Stock Exchange so require, the Issuer will inform the Companies Announcement Office of the Irish Stock Exchange in Dublin or in the case of Definitive Notes, in addition to such publication, mail to Holders by first-class mail, postage prepaid, at their respective addresses as they appear on the registration books of the Registrar (and, if and so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange, and the rules of the Global Exchange Market of the Irish Stock Exchange so require, the Issuer will inform the Companies Announcement Office of the Irish Stock Exchange in Dublin)), 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, any unclaimed balance of such money then remaining will be repaid to the Issuer.

 

SECTION 8.10      Reinstatement. If the Trustee or any Paying Agent is unable to apply any cash in accordance with Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until such time as the Trustee or Paying Agent is permitted to apply all such cash in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however, that if the Issuer has made any payment of interest on, premium, if any, principal and Additional Amounts, if any, of any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

 

Article IX

 

AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

SECTION 9.1      Without Consent of Holders of Notes. Notwithstanding Section 9.2 hereof, the Issuer, the Guarantors and the Trustee together may amend or supplement this Indenture, the Notes, the Guarantees or the Priority Agreement without the consent of any Holder of a Note:

 

(1)            to cure any ambiguity, defect, error or inconsistency;

 

(2)            to provide for uncertificated Notes in addition to or in place of Definitive Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code);

 

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(3)            to provide for the assumption of the Issuer’s or a Guarantor’s obligations to Holders in the case of a merger or consolidation or sale of all or substantially all of the Issuer’s or such Guarantor’s assets, as applicable;

 

(4)            to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Indenture of any Holder;

 

(5)            to allow any Guarantor to execute a supplemental indenture and/or a Guarantee with respect to the Notes;

 

(6)            to evidence and provide the acceptance of the appointment of a successor Trustee under this Indenture;

 

(7)            to add additional parties to the Priority Agreement to the extent permitted hereunder and thereunder; or

 

(8)            to terminate the Priority Agreement to the extent permitted hereunder.

 

Without the consent of the Holders of 80% in aggregate principal amount of the Notes then outstanding, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder) release any Guarantor from any of its obligations under its Guarantee or this Indenture, except in accordance with the terms of this Indenture.

 

Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture which adversely affects its own rights, duties or immunities hereunder or otherwise.

 

For so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange, and the rules of the Global Exchange Market of the Irish Stock Exchange so require, the Issuer will give notice to the Companies Announcement Office of the Irish Stock Exchange in Dublin of any of the foregoing amendments, supplements and waivers and provide, if necessary, a supplement to the Offering Memorandum setting forth reasonable details in connection with any such amendments, supplements or waivers.

 

Notwithstanding anything to the contrary in this Section 9.1, in order to effect an amendment authorized by this Section 9.1 to add a Guarantor under this Indenture, it shall only be necessary for the supplemental indenture providing for the accession of such additional Guarantor to be duly authorized and executed by (i) the Issuer, (ii) such additional Guarantor and (iii) the Trustee.

 

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SECTION 9.2      With Consent of Holders of Notes. The Issuer, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes, the Guarantees or the Priority Agreement with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), and, subject to Sections 6.7 and 6.10, any existing Default or Event of Default and its consequences or compliance with any provision of this Indenture, the Notes, the Guarantees or the Priority Agreement may be waived with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes). However, without the consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder of Notes):

 

(1)            reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

 

(2)            reduce the principal of or change the fixed maturity of any Note;

 

(3)            reduce the rate of or change the time for payment of interest on any Note;

 

(4)            reduce the premium or amount payable upon the redemption of any Note or change the time at which any Note may be redeemed as described in Paragraphs 7 and 8 of the Notes;

 

(5)            waive a Default or Event of Default in the payment of principal of, or interest, premium or Additional Amounts, if any, on the Notes (except a rescission of acceleration of such Notes by the Holders of at least a majority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration);

 

(6)            make any Note payable in money other than that stated in the Notes;

 

(7)            make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of such Notes to receive payments of principal of, interest, premium or Additional Amounts, if any, on such Notes or the rights of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes or any guarantee in respect thereof;

 

(8)            waive a redemption payment with respect to any Note;

 

(9)            make any change in the provisions of this Indenture described in Section 4.20 hereof that adversely affects the rights of any Holder of such Notes or amends the terms of such Notes in a way that would result in a loss of an exemption from any of the Taxes described thereunder or an exemption from any obligation to withhold or deduct Taxes so described thereunder unless the Payor agrees to pay Additional Amounts, if any, in respect thereof; or

 

(10)            make any change in the preceding amendment and waiver provisions.

 

Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture adversely affects the Trustee’s own rights, duties or immunities hereunder or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. It shall not be necessary for the consent of the Holders of Notes 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. After an amendment, supplement or waiver under this Section becomes effective, the Issuer shall mail to the Holders of Notes a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.

 

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After an amendment, supplement or waiver under the foregoing paragraph becomes effective, the Issuer shall, in the case of Definitive Notes, mail to the Holders of the Notes a notice briefly describing the amendment, supplement or waiver. However, the failure to give such notice to all Holders of the Notes, or any defect therein, will not in any way impair or affect the validity of such amended or supplemented indenture or waiver. In addition, for so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange, and the rules of the Global Exchange Market of the Irish Stock Exchange so require, the Issuer will give notice of any amendment, supplement and waiver to the Companies Announcement Office of the Irish Stock Exchange in Dublin.

 

SECTION 9.3      Revocation and Effect of Consents. (a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder of a Note.

 

(b)            The Issuer may, but shall not be obligated to, fix a record date for determining which Holders of the Notes must consent to such amendment, supplement or waiver. If the Issuer fixes a record date, the record date shall be fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of Notes furnished to the Trustee prior to such solicitation pursuant to Section 2.5 or (ii) such other date as the Issuer shall designate.

 

SECTION 9.4      Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall 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 shall, at the cost and expense of the Issuer, execute any amendment, supplement or waiver authorized pursuant to this Article IX; provided, however, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which adversely affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive indemnity reasonably satisfactory to it, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that (i) the execution of any amendment, supplement or waiver authorized pursuant to this Article IX is authorized or permitted by this Indenture and (ii) constitutes the legal, valid and binding obligations of the Issuer enforceable in accordance with its terms; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

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Article X

 

GUARANTEES

 

SECTION 10.1      Guarantee. (a) Subject to the provisions of Section 10.2 hereof and any other limitations under applicable law, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guarantee Obligations”). Each Guarantor further agrees (to the extent permitted by and subject to requirements under applicable law) that the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X (to the extent permitted by applicable and subject to requirements under applicable law) notwithstanding any extension or renewal of any Guarantee Obligation.

 

(b)            To the extent permitted by law, each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Guarantee Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantee Obligations. The obligations of each Guarantor hereunder shall not (to the extent permitted by and subject to requirements under applicable law) be affected by: (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer, any other Guarantor or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Priority Agreement or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guarantee Obligations or any of them; or (e) any change in the ownership of the Issuer.

 

(c)            Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantee Obligations.

 

(d)            Subject to the provisions of Section 10.2 hereof, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantee Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent permitted by law) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantee Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent permitted by law) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Note, the Priority Agreement or any other agreement, (ii) any waiver or modification of any thereof, (iii) any default, failure or delay, willful or otherwise, in the performance of the Guarantee Obligations, or (iv) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.

 

(e)            Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest or Additional Amounts, if any, on any of the Guarantee Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization (including examinership) of the Issuer or otherwise.

 

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(f)            Subject to the provisions of Section 10.2 hereof, in furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantee Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee for and on behalf of itself and the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantee Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantee Obligations then due and owing (but only to the extent not prohibited by law). Payments made under this guarantee shall be made to the Trustee on behalf of the Holders.

 

(g)            Each Guarantor further agrees that, as between it, on the one hand, and the Holders, on the other hand, but subject always to Section 10.2 hereof, (x) the maturity of the Guarantee Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantee Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantee Obligations, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purposes of its Guarantee.

 

(h)            Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.

 

(i)            Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof.

 

SECTION 10.2      Limitation on Liability. (a) Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or transfer or similar laws affecting the rights of creditors generally.

 

(b)            The liability of each Parent Guarantor and Subsidiary Guarantor under this Article X shall be limited to the extent of the limitations (if any) set out in Exhibit E or in any supplemental indenture executed by a Subsidiary providing for a Guarantee.

 

SECTION 10.3      Successors and Assigns. This Article X shall be binding upon each Guarantor and its successors and assigns and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.

 

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SECTION 10.4      No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article X shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article X at law, in equity, by statute or otherwise.

 

SECTION 10.5      Modification. No modification, amendment or waiver of any provision of this Article X, nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand in the same, similar or other circumstances.

 

SECTION 10.6      Release of Guarantor. The Guarantee of a Guarantor will be released:

 

(1)            with respect to a Subsidiary Guarantor, in connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Issuer or a Subsidiary;

 

(2)            with respect to a Subsidiary Guarantor, in connection with any sale or other disposition of Capital Stock of that Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) the Issuer or a Subsidiary, if such Subsidiary Guarantor ceases to be a Subsidiary as a result of such sale or other disposition;

 

(3)            with respect to a Subsidiary Guarantor, not more than 30 consecutive days have lapsed since the aggregate principal amount outstanding of Indebtedness of the Parent under the Senior Facility Agreement (determined on a consolidated basis in accordance with IFRS) and any undrawn uncancelled commitments thereunder both (i) represents less than 30% of the sum of the Senior Secured Indebtedness of the Parent and any undrawn uncancelled commitments under the Senior Facility Agreement and (ii) is less than €1.0 billion, upon the permanent release or discharge of the guarantee or other obligation of such Subsidiary Guarantor under the Senior Facility Agreement or such other guarantee or other obligation that resulted in the creation of such Guarantee, except a release or discharge by or as a result of payment under such guarantee; provided that the guarantee of such Subsidiary Guarantor under the Existing Senior Notes has been released or is concurrently released;

 

(4)            by written notice from the Issuer to the Trustee if such Guarantor does not then guarantee the Issuer’s obligations under any of the Existing Senior Notes (after giving effect to Indebtedness and guarantees concurrently being released or repaid);

 

(5)            in accordance with Article IX;

 

(6)            upon the full and final payment and performance of all Obligations of the Issuer and the Guarantors under this Indenture and the Notes; or

 

(7)            upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge of this Indenture as provided for in Article VIII;

 

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provided, however, that in the case of clauses (1) and (2) above, the Issuer provides an Officers’ Certificate to the Trustee to the effect that the Issuer will comply with its obligations under Section 4.6.

 

At the request of the Issuer, the Trustee shall execute and deliver an appropriate instrument evidencing such release.

 

SECTION 10.7      Execution of Supplemental Indenture for Future Guarantors. Each Subsidiary and other Person which is required to become a Guarantor pursuant to Section 4.8 shall promptly execute and deliver to the Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to which such Subsidiary or other Person shall become a Guarantor under this Article X and shall guarantee the Guaranteed Obligations. Concurrently with the execution and delivery of such supplemental indenture, the Issuer shall deliver to the Trustee an Opinion of Counsel and an Officers’ Certificate to the effect (i) that such supplemental indenture has been duly authorized, executed and delivered by such Subsidiary or other Person and (ii) that, subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws affecting the rights of creditors generally and to the principles of equity, whether considered in a proceeding at law or in equity, the Guarantee of such Guarantor is a valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms and to such other matters as the Trustee may reasonably request; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

Article XI

 

MISCELLANEOUS

 

SECTION 11.1      Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telecopier or first-class mail, postage prepaid, addressed as follows:

 

if to the Issuer or any Guarantor:

 

Attention: Secretary
Smurfit Kappa Acquisitions
Beech Hill
Clonskeagh
Dublin 4
Ireland
Facsimile: +353-1-283-7113

 

with a copy to:

 

Attention: Mr. Dennis M. Myers, P.C.
Kirkland & Ellis LLP
300 N. LaSalle
Chicago, Illinois 60654

United States

Facsimile: +1-312-862-2200

 

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if to the Trustee:

 

Attention: Trust & Securities Services, Global Debt Services
Deutsche Trustee Company Limited
Winchester House
1 Great Winchester Street
London EC2N 2DB
England Telecopier: +44-207-547-6149

 

if to the Principal Paying Agent or Transfer Agent:

 

Attention: Trust & Securities Services
Deutsche Bank AG, London Branch, as Principal Paying Agent and Transfer Agent
Winchester House
1 Great Winchester Street
London EC2N 2DB
England
Telecopier: +44-207-547-6149

 

if to the Registrar:

 

Deutsche Bank Luxembourg S.A.
2, boulevard Konrad Adenauer
L-1115 Luxembourg
Telecopier: +352-473-136

 

Each of the Issuer and the Trustee by written notice to each other such Person may designate additional or different addresses for notices to such Person. Any notice or communication to the Issuer and the Trustee shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if telecopied; and five calendar days after mailing if sent by first class mail, postage prepaid (except that a notice of change of address and a Notice to the Trustee shall not be deemed to have been given until actually received by the addressee).

 

In the case of Definitive Notes, all notices to Holders of Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. And, so long as any of the Notes are listed on the Irish Stock Exchange, and the rules of the Irish Stock Exchange so require, notices will be given to the Companies Announcement Office of the Irish Stock Exchange in Dublin. Each such notice shall be deemed to have been given on the date of such publication, or, if published more than once on different dates, on the first date on which publication is made, provided that, if notices are mailed, such notice shall be deemed to have been given on the later of such publication and the seventh day after being so mailed. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of beneficial interests in the Notes and all notices that are required to be delivered to Holders will be deemed delivered for purposes of this Indenture if delivered to such Clearing Agencies for communication to holders of book-entry interests. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to such Person if so mailed within the time prescribed. 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. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

 

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SECTION 11.2      Communications by Holders with Other Holders. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and any other person shall have the protection of Section 312(c) of the TIA.

 

SECTION 11.3      Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee or an Agent to take any action under this Indenture, the Issuer shall furnish to the Trustee at the request of the Trustee:

 

(1)            an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.4) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied or complied with; and

 

(2)            an Opinion of Counsel (which shall include the statements set forth in Section 11.4) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied or complied with.

 

In any case where several matters are required to be certified by, or covered by an Opinion of Counsel of, any specified Person, it is not necessary that all such matters be certified by, or covered by the Opinion of Counsel of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an Opinion of Counsel with respect to some matters and one or more such Persons as to other matters, and any such Person may certify or give an Opinion of Counsel as to such matters in one or several documents.

 

Any certificate of an Officer of the Issuer may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such Officer knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the matters upon which his certificate is based are erroneous. Any Opinion of Counsel may be based, and may state that it is so based, insofar as it relates to factual matters, upon a certificate of, or representations by, an officer or officers of the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate 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 11.4      Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

(1)            a statement that the Person making such certificate or opinion has read such covenant or condition;

 

(2)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)            a statement that, in the opinion of such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

60

 

 

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

 

provided, however, that an issuer of an Opinion of Counsel may reasonably rely as to any matter of fact on an Officers’ Certificate or a certificate of a public official.

 

SECTION 11.5      Rules by Trustee, Paying Agent, Registrar. The Trustee, the Paying Agent, the Principal Paying Agent or the Registrar may make reasonable rules for its functions.

 

SECTION 11.6      Legal Holidays. If a payment date is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.

 

SECTION 11.7      Governing Law. This Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

SECTION 11.8      Submission to Jurisdiction; Appointment of Agent for Service. To the fullest extent permitted by applicable law, the Issuer and each Guarantor irrevocably submits to the non-exclusive jurisdiction of and venue in any federal or state court in the Borough of Manhattan in the City of New York, County and State of New York, United States of America, in any suit or proceeding based on or arising out of or under or in connection with this Indenture or any of the transactions contemplated hereby, and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Issuer, to the fullest extent permitted by applicable law, irrevocably and fully waives the defense of an inconvenient forum to the maintenance of such suit or proceeding and hereby irrevocably designates and appoints Smurfit Kappa Packaging LLC (the “Authorized Agent”) as its authorized agent upon whom process may be served in any such suit or proceeding. The Issuer represents and warrants that the Authorized Agent has accepted such appointment and irrevocably agreed to act as said agent for service of process. The Issuer agrees that service of process upon its Authorized Agent and written notice of said service to the Issuer, mailed by first class mail or delivered to its Authorized Agent shall be deemed in every respect effective service of process upon the Issuer in any such suit or proceeding. Nothing herein shall affect the right of any person to serve process in any other manner permitted by law. The Issuer agrees that a final action in any such suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other lawful manner. Notwithstanding the foregoing, any action against the Issuer arising out of or based on this Indenture or the transactions contemplated hereby may also be instituted in any competent court in Ireland and the Issuer expressly accepts the jurisdiction of any such court in any such action. The Issuer hereby irrevocably waives, to the extent permitted by law, any immunity to jurisdiction to which it may otherwise be entitled (including immunity to pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Indenture, the Notes or the transactions contemplated hereby. The provisions of this Section 11.8 are intended to be effective upon the execution of this Indenture and the Notes without any further action by the Issuer or the Trustee and the introduction of a true copy of this Indenture into evidence shall be conclusive and final evidence as to such matters. Each and any Guarantor organized in Mexico further agrees that any service of process or notice made at the domicile of the Authorized Agent located at 1301 International Parkway, Suite 550, Sunrise, Florida 33323 (or any other domicile that the Authorized Agent notifies to the parties hereto in writing) shall be acceptable and that they will grant an irrevocable power of attorney to the Authorized Agent for lawsuits and collections to authorize it to act as process agent for the purposes herein.

 

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SECTION 11.9      No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of any of the Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

SECTION 11.10      No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders. No director, officer, employee, incorporator or shareholder of the Parent Guarantors, the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Parent Guarantors, the Issuer or any Subsidiary Guarantor under the Notes, this Indenture or the Priority Agreement or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

SECTION 11.11      Currency Indemnity. The euro is the sole currency of account and payment for all sums payable by the Issuer and the Guarantors under or in connection with the Notes and the Guarantees, including damages. Any amount received or recovered in a currency other than euro whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, any Guarantor or otherwise by any Holder or by the Trustee, as the case may be, in respect of any sum expressed to be due to it from the Issuer or a Guarantor will only constitute a discharge to the Issuer or the Guarantor, as applicable, to the extent of the euro amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that euro amount is less than the euro amount expressed to be due to the recipient under any Note, any Guarantee or to the Trustee, the Issuer and the Guarantors will indemnify them on a joint and several basis against any loss sustained by such recipient as a result. In any event, the Issuer and the Guarantors will indemnify the recipient on a joint and several basis against the cost of making any such purchase. For the purposes of this Section 11.11, it will be sufficient for the Holder of a Note or the Trustee to certify in a satisfactory manner (indicating the sources of information used) that it would have suffered a loss had an actual purchase of euro been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of euro on such date had not been practicable, on the first date on which it would have been practicable, it being required that the need for a change of date be certified in the manner mentioned above). These indemnities constitute a separate and independent obligation from the Issuer’s and the Guarantors’ other obligations, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by any Holder of a Note or the Trustee and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note, any Guarantee or to the Trustee.

 

SECTION 11.12      Currency Calculation. Except as otherwise expressly set forth herein, for purposes of determining compliance with any euro-denominated restriction herein, the euroequivalent amount for purposes hereof that is denominated in a non-euro currency shall be calculated based on the relevant currency exchange rate in effect on the date such non-euro amount is incurred or made, as the case may be.

 

SECTION 11.13      Information. For so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange, and the rules of the Global Exchange Market of the Irish Stock Exchange so require, copies of this Indenture will be made available through the offices of the Irish listing agent.

 

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SECTION 11.14      Successors. All agreements of the Issuer in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.

 

SECTION 11.15      Counterpart Originals. All parties hereto may sign any number of copies of this Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent one and the same agreement.

 

SECTION 11.16      Severability. In case any one or more of the provisions in this Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

SECTION 11.17      Table of Contents, Headings, etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

SECTION 11.18      Termination of Priority Agreement. On or following the Issue Date, the Trustee, on behalf of itself and the Holders of the Notes and at the request and expense of the Issuer, will accede to the Priority Agreement. Each Holder, by accepting a Note, consents and agrees to the terms and conditions of the Priority Agreement. The Parent shall be entitled, upon written notice by the Parent to the Trustee, to terminate the Priority Agreement as to itself, the Issuer and all of the Guarantors, in its sole discretion and without any action on the part of the Trustee or any of the Holders of the Notes at any time after which the holders of any of the Existing Senior Notes are no longer entitled to the benefits of, or otherwise subject to the terms or conditions of, the Priority Agreement.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of the date first written above.

 

SIGNED and DELIVERED as a deed
for and on behalf of
SMURFIT KAPPA ACQUISITIONS
by its duly authorised attorney		    
     
     
in the presence of    
     
Michael McDonald   /s/ Michael O’Riordan
      Signature
/s/ Michael McDonald    
Witness (Signature)    
     
Wilton Place, Fitzwilton House, Dublin 2    
Print Address    
     
Solicitor    
Witness Occupation    
     

 

Signature Page to Indenture

 

 

 

 

SIGNED and DELIVERED as a deed
for and on behalf of
Smurfit Kappa Investments Limited
by its duly authorised attorney		    
     
     
in the presence of Michael McDonald   /s/ Michael O’Riordan
      Signature
/s/ Michael McDonald    
Witness (Signature)    
     
Wilton Place, Fitzwilton House, Dublin 2    
Print Address    
     
Solicitor    
Witness Occupation    

 

Signature Page to Indenture

 

 

 

 

SIGNED and DELIVERED as a deed
for and on behalf of
Smurfit Kappa Group plc
by its duly authorised attorney		    
     
     
in the presence of Michael McDonald   /s/ Michael O’Riordan
      Signature
/s/ Michael McDonald    
Witness (Signature)    
     
Wilton Place, Fitzwilton House, Dublin 2    
Print Address    
     
Solicitor    
Witness Occupation    

 

Signature Page to Indenture

 

 

 

 

 

 

 Deutsche TrustEE Company LIMITED, as Trustee
   
  By: /s/ Mahen Surnam
    Name: Mahen Surnam
Title: Associate Director
     
  By: /s/ Miriam Keeler
    Name: Miriam Keeler
Title: Associate Director

 

Signature Page to Indenture

 

 

 

 

 

 

Deutsche BANK AG, London Branch,

as Principal Paying Agent and Transfer

Agent

   
  By: /s/ Mahen Surnam
    Name: Mahen Surnam
Title: VP
     
  By: /s/ Miriam Keeler
    Name: Miriam Keeler
Title: Director

 

Signature Page to Indenture

 

 

 

 

 

 

Deutsche BANK LUXEMBOURG S.A.,

as Registrar

   
  By: /s/ Mahen Surnam
    Name: Mahen Surnam
Title: Associate
     
  By: /s/ Miriam Keeler
    Name: Miriam Keeler
Title: Attorney

 

Signature Page to Indenture

 

 

 

 

SIGNED and DELIVERED as a deed
for and on behalf of
Smurfit Kappa Treasury
by its duly authorised attorney		    
     
     
in the presence of Michael McDonald   /s/ Michael O’Riordan
      Signature
/s/ Michael McDonald    
Witness (Signature)    
     
Wilton Place, Fitzwilton House, Dublin 2    
Print Address    
     
Solicitor    
Witness Occupation    

 

Signature Page to Indenture

 

 

 

 

SIGNED and DELIVERED as a deed
for and on behalf of
Smurfit Kappa Treasury Funding Limited
by its duly authorised attorney		    
     
     
in the presence of Michael McDonald   /s/ Michael O’Riordan
      Signature
/s/ Michael McDonald    
Witness (Signature)    
     
Wilton Place, Fitzwilton House, Dublin 2    
Print Address    
     
Solicitor    
Witness Occupation    

 

Signature Page to Indenture

 

 

 

 

  Smurfit International B.V.
   
  By: /s/ Michael O’Riordan   
  Name: Michael O’Riordan
  Title: Proxyholder

 

Signature Page to Indenture

 

 

 

 

SCHEDULE A

SUBSIDIARY GUARANTORS

 

Name Jurisdiction Registration Number
(or equivalent, if any)
Smurfit Kappa Cartomills SPRL (previously Cartomills SPRL) Belgium 0448.776.735
Smurfit Kappa Turnhout N.V. (previously Kappa Turnhout NV) Belgium 0437.837.016
Fibras Limited Bermuda 12616
S.I. Holdings Limited Bermuda 11114
Smurfit Canada Holdings Limited Canada

New Brunswick Corporation

507606

Smurfit Kappa Czech s.r.o. (previously Kappa Packaging Czech, s.r.o.) Czech Republic 25105582
Kappa Packaging Danmark Holding ApS Denmark 29 17 75 62

Smurfit Kappa Danmark A/S

(previously Kappa Packaging Danmark A/S)

 Denmark 81 87 66 14
Cundell Group Holdings Limited England 02340016
Smurfit Kappa Packaging UK Limited (previously Kappa Packaging UK Limited) England 03566845
Smurfit Corrugated Holdings England 01763645
Smurfit Corrugated UK Limited England 00700242
Smurfit Kappa Investments UK Limited England 02014441
Smurfit Kappa UK Limited England 01017013
Smurfit Ward Limited England 02891814
Smurfit Kappa Participations SAS France 437 631 138 RCS Creteil
Smurfit Kappa Cellulose du Pin SAS France 572 142 198 RCS Bordeaux
Smurfit Kappa C.D. Haupt Beteiligungs GmbH (previously Smurfit Kappa C.D. Haupt Beteiligungs GmbH & Co. KG) Germany Commercial Register of local court of Korbach, Germany no. HRB 1740

 

 

 

 

Smurfit Kappa C.D. Haupt Papier-und Pappenfabrik GmbH Germany Commercial register of local court of Korbach, Germany, no. HRB 1612
Smurfit Kappa Deutschland GmbH Germany Commercial register of local court of Hamburg, Germany, no. HRB 90813
Smurfit Kappa GmbH Germany Commercial register of local court of Hamburg, Germany, no. HRB 82102
Smurfit Kappa Grundstucks-Verwaltungsgesellschaft Europa Carton mbH Germany Commercial Register of local court of Hamburg, Germany no. HRB 9823
Smurfit Kappa Herzberger Grundstucks GmbH Germany Commercial register of local court of Gottingen, Germany, no. HRB 120478
Smurfit Kappa Herzberger Wellpappe GmbH Germany Commercial register of local court of Gottingen, Germany, no. HRB 120286
Smurfit Kappa Leasing GmbH Germany Commercial register of local court of Hamburg, no. HRB 14941
Smurfit Kappa Packaging GmbH Germany Commercial register of local court of Hamburg, Germany, no. HRB 111621
Smurfit Kappa Papierverwaltungsgesellschaft Wrexen mbH Germany Commercial register of local court of Korbach, Germany, no. HRB 1010
Smurfit Kappa Recycling GmbH Germany Commercial Register of local court of Hamburg, Germany no. HRB 8368
Smurfit Kappa Wellpappenwerk Schneverdingen GmbH (previously Smurfit Kappa Schnev er dinger Wellpappenwerk GmbH) Germany Commercial register of local court of Luneburg, Germany no. HRB 101891
Smurfit Kappa Wellpappenwerk Waren GmbH Germany Commercial register of local court of Neubrandenburg, no. HRB 304
Smurfit Kappa Zulpich Papier GmbH Germany

Commercial register of local court of Bonn, Germany, no.

HRB 11173

Smurfit Kappa Zulpich Papiermaschine GmbH Germany Commercial register of local court of Bonn, Germany, no. HRB 11722
Gillridge Holdings Limited Gibraltar Commercial register of Gibraltar, no. 34838
Sandlee Investments Limited Gibraltar Commercial register of Gibraltar, no. 34837

 

 

 

 

Wilshaw Investments Limited Gibraltar Commercial register of Gibraltar, no. 27619
Belgray Holdings Ireland 55866
Brenchley Limited Ireland 8628
Central Waste Paper Company Limited (previously Southern Waste Limited) Ireland 66062
Claystoke Limited (previously Claystoke Investments Limited) Ireland 325480
Crayside Limited Ireland 321264
Damous Limited Ireland 181223
Gorda Limited Ireland 85693
Gweebara Limited Ireland 45075
Headley Holdings Ireland 63551
Iona Print Limited Ireland 39529
Jefferson Smurfit & Sons, Limited Ireland 7345
Margrave Investments Limited Ireland 363510

Smurfit Kappa Leasing

(previously Smurfit Capital Leasing)

 Ireland 224165
Smurfit Kappa Treasury (previously Smurfit Capital) Ireland 177324
Smurfit Kappa Treasury Funding Limited (previously Smurfit Capital Funding Limited) Ireland 239631
Smurfit Corrugated Ireland (previously Smutfit Corrugated Ireland Limited) Ireland 49977
Smurfit International Limited Ireland 45909
Smurfit Investments (Ireland) Limited Ireland 32153
Smurfit Kappa Ireland Limited (previously Smurfit Ireland Limited) Ireland 2263
Smurfit Kappa News Press Limited (previously Smutfit News Press Limited) Ireland 319020

Smurfit Kappa Packaging Limited

(previously Smurfit Packaging Corporation Limited)

 Ireland 8610
Smurfit Kappa Services Limited (previously Smurfit Services Limited) Ireland 88814
Smurfit Kappa Irish Paper Sacks Limited (previously Smurfit Irish Paper Sacks Limited) Ireland 364335
Smurfit Kappa Italia S.p.A. Italy 07034140157
Smurfit Kappa Holdings Italia S.p.A. Italy 01912140066
Corrugados de Baja California, S. de R.L. de C.V. Mexico 28082*2
Grupo Smurfit Mexico, S.A. de C.V. Mexico 25056
Smurfit Carton y Papel de Mexico, S.A. de C.V. Mexico 626
Smurfit Servicios Financieros, S.A. de C.V., S.O.F.O.M., E.N.R. Mexico 406485
Tenedora Smurfit, S.A. de C.V. Mexico 20090*7
Cobra Golfkarton B.V. Netherlands 20039982
Kappa Graphic Board USA B.V. Netherlands 02332136
Kappa Packaging International B.V. Netherlands 33303997
Kappa Packaging Nederland Holding B.V. Netherlands 33303998
Packaging Investments Holdings (PIH) B.V. Netherlands 33210609
Packaging Investments International (PII) B.V. Netherlands 33211336
Packaging Investments Netherlands (PIN) B.V Netherlands 33195617
Smurfit Corrugated B.V. Netherlands 33152690

 

 

 

 

Smurfit Holdings B.V. Netherlands 33175753
Smurfit Investments B.V. Netherlands 33175365
Smurfit International B.V. Netherlands 33149443
Smurfit Kappa Attica B.V. (previously Kappa Attica B. V.) Netherlands 02300918
Smurfit Kappa B.V. (previously Kappa Packaging B.V.) Netherlands 33302227
Smurfit Kappa Corrugated Benelux B.V. (previously CBNederlandB.V.) Netherlands 32062689
Smurfit Kappa Corrugated Division B.V. (previously Corrugated Europe B.V.) Netherlands 14628279
Smurfit Kappa ELCORR B.V. (previously Smutfit Kappa Oudenbosch Gojkarton B.V.) Netherlands 20045250
Smurfit Kappa Finance B.V. (previously JSG Finance B. V.) Netherlands 34192622
Smurfit Kappa MNL Golfkarton B.V.(previously Smurfit Kappa De Zeeuw Gotjkarton B.V.) Netherlands 08029414
Smurfit Kappa Nederland B.V. (previously Kappa Packaging Nederland B.V.) Netherlands 14628280
Smurfit Kappa Paper Services B.V. (previouslyKappa ContainerboardB.V.) Netherlands 32065886
Smurfit Kappa Roermond Papier B.V. (previously Kappa Roermond Papier B.V.) Netherlands 13027128
Smurfit Kappa Specialties Division B.V. (previously Kappa Solid Board Division B.V.) Netherlands 32059345
Smurfit Kappa Trimbach B.V. (previously Kappa Trimbach B.V.) Netherlands 20018683
Smurfit Kappa Triton B.V. (previously Kappa Triton B.V.) Netherlands 02327520
Smurfit Kappa TWINCORR B.V. (previously Kappa TWINCORR B.V.) Netherlands 04029267
Smurfit Kappa Vandra B.V. (previously Kappa Vandra Gojkarton B.V.) Netherlands 20000623
Smurfit Kappa Norge AS (previously Smurfit Sundland-Eker AS) Norway 956 786 649
Smurfit Kappa Iberoamericana S.A. (previously Kappa Iberoamericana S.A.) Spain Commercial Registry of Alicante, at Volume 1.361, Folio 37, Sheet A-9.447
Smurfit Kappa Nervion S.A. Spain Commercial Registry of Vizcaya at Volume 2,280, Folio 166 and BI-171
Smurfit Kappa Espana, S.A. (previously Smurfit Espana S.A.) Spain Commercial Registry of Madrid at Volume 2330, Folio 200, Sheet M-40,989
Smurfit Kappa Kraftliner Pitea AB Sweden 556040-5960
Smurfit Kappa Packaging Sweden AB Sweden 556596-1348
Smurfit Kappa Sverige Holding AB Sweden 556117-7329
Smurfit Kappa Packaging AB Sweden 556029-6344
Smurfit Holdings AB Sweden 556519-1201
Smurfit Kappa Lagamill AB Sweden 556140-5696
Smurfit Kappa Sverige AB Sweden 556037-6898
Smurfit Kappa Holdings US Inc. United States (Delaware) 5215279

 

 

 

 

Smurfit Kappa Orange County LLC (previous/y Orange County Container Group LLC)

 United States (Delaware) 4570347
CSI Texas Holdings, Inc. United States (Texas) 22365600
OCC Holdings, Inc. United States (California) 3155179
OCC Group, LLC United States (California) 200831710011

 

 

 

 

EXHIBIT A TO THE
INDENTURE

 

[FORM OF FACE OF GLOBAL NOTE]

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Global Securities Legend]

 

UNLESS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V. (“EUROCLEAR”) OR CLEARSTREAM BANKING, SOCIETE ANONYME (“CLEARSTREAM”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF EUROCLEAR OR CLEARSTREAM OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

[Regulation S Securities Legend]

 

UNTIL 40 DAYS AFTER THE COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF THIS SECURITY WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

[Restricted Securities/Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

 

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

 

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA “), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA, NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

 

 

 

SMURFIT KAPPA ACQUISITIONS

 

2.75% SENIOR NOTE DUE 2025

 

Common Code: [Regulation S: 111729875] / [Rule 144A: 111729859]

 

ISIN: [Regulation S: XS1117298759] / [Rule 144 A: XS1117298593]

 

No. __

 

SMURFIT KAPPA ACQUISITIONS, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay € to or registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on February 1, 2025.

 

Interest Payment Dates: August 1 and February 1, commencing August 1, 2015.

 

Record Dates: July 15 and January 15.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

 

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated: February 16, 2015

 

  SMURFIT KAPPA ACQUISITIONS
   
  By:                   
  Name:   
  Title:  
   
  By:  
  Name:  
  Title:  

 

This is one of the Notes referred to

in the within-mentioned Indenture:

 

Deutsche Bank Luxembourg S.A.,

as Authenticating Agent for

DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee

 

By:           
Name:    
Title:    

 

Dated: ___________________________________

 

 

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA ACQUISITIONS

 

2.75% SENIOR NOTE DUE 2025

 

1.            Interest. SMURFIT KAPPA ACQUISITIONS, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the Notes will be payable semi-annually in arrears on August 1 and February 1 in each year, commencing on August 1, 2015. The Issuer will make each interest payment to the Holders of record on the immediately preceding July 15 and January 15. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the Notes will accrue at the rate of 2.75% per annum. Interest on the Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

The Issuer shall pay interest on overdue principal and on overdue installments of interest (without regard to any applicable grace periods) and on any Additional Amounts from time to time on demand at the rate borne by the Notes plus 1.0% per annum to the extent lawful. Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.            Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organised or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or beneficial owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or beneficial owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

 

 

 

(2)            any Taxes that would not have been imposed if the Holder or beneficial owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or beneficial owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)            except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)            any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

(7)            a Tax imposed on a payment to an individual and required to be made pursuant to the Directive or any law implementing or complying with, or introduced in order to conform to, such Directive;

 

(8)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

(9)            any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(10)            any combination of clauses (1) through (9) above.

 

 

 

 

Such Additional Amounts will also not be payable where, had the beneficial owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (10) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.            Method of Payment. The Issuer shall pay interest (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. Immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.            Paying Agent and Registrar. Initially, Deutsche Bank AG, London Branch, will act as Principal Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or transfer agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.            Indenture. The Issuer issued the Notes under an Indenture, dated as of February 16, 2015 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent and Transfer Agent, and Deutsche Bank Luxembourg S.A., as Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 2.75% Senior Notes due 2025 (the “Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

6.            Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.            Optional Redemption. Except as set forth below or under Paragraph 8, none of the Notes will be redeemable at the Issuer’s option prior to November 1, 2024.

 

 

 

 

At any time prior to November 1, 2024, the Issuer may redeem the Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such Note on November 1, 2024, plus (ii) all required interest payments due on such Note through November 1, 2024 (excluding accrued but unpaid interest to the date of redemption), computed using a discount rate equal to the Bund Rate as of such date of redemption plus 50 basis points calculated by the Issuer, plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

On or after November 1, 2024, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

If and so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange, and the rules of the Global Exchange Market of the Irish Stock Exchange so require, in the event that the Issuer effects an optional redemption of the Notes, the Issuer will inform the Companies Announcement Office of the Irish Stock Exchange in Dublin of such optional redemption and confirm the aggregate principal amount of the Notes that will remain outstanding following such redemption.

 

8.            Special Tax Redemption. The Issuer may, at its option, redeem the Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise, (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the Notes would be, required to pay Additional Amounts, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such Notes were then due. Prior to the publication or mailing of any notice of redemption of Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the Notes.

 

 

 

 

9.            Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.            Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

11.            [Intentionally omitted]

 

12.            Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture, the Priority Agreement and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.            Acceptance of Terms and Conditions. The Indenture provides that each Holder, by accepting a Note, consents and agrees to the terms and conditions of the Priority Agreement and acknowledges that, upon written notice by the Parent to the Trustee, the Parent is permitted to terminate the Priority Agreement as to itself, the Issuer and all of the Guarantors in its sole discretion and without any action on the part of the Trustee or the Holders, at any time after which the holders of any of the Existing Senior Notes are no longer entitled to the benefits of, or otherwise subject to the terms or conditions of, the Priority Agreement.

 

14.            [Intentionally omitted]

 

15.            Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar and the Paying Agent and transfer agents may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

 

 

 

16.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

17.            Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

18.            Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

19.            Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding.

 

20.            Restrictive Covenants. The Indenture imposes certain covenants that, among other things, limit the ability of the Issuer and its Subsidiaries to incur additional Indebtedness secured by a Lien, limit the ability of the Issuer’s Subsidiaries to guarantee the Existing Senior Notes or any other Public Indebtedness without guaranteeing the Notes and limit the ability of the Issuer to enter into and consummate certain mergers and consolidations or sales of all or substantially all of its assets. The limitations are subject to a number of important qualifications and exceptions. The Issuer must annually report to the Trustee on compliance with such limitations.

 

21.            Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.            Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

23.            Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

 

 

 

24.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer, as such, shall have any liability for any obligations of the Issuer under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

25.            Authentication. This Note shall not be valid until the Trustee or

 

Authenticating Agent signs the certificate of authentication on this Note.

 

26.            Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.            ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.            Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

 

 

 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL AMOUNT

 

The initial principal amount at maturity of this Note shall be €      . The following decreases/increases in the principal amount at maturity of this Note have been made:

 

Date of
Decrease/
Increase		  Decrease in
Principal Amount
at Maturity		  Increase in
Principal Amount
at Maturity		  Total Principal
Amount at Maturity
Following such Decrease/
Increase		  Notation Made
by or on Behalf of
Trustee
             
             
             
             
             
             
             
             
             
             
             
             

 

 

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date: __________________

 

Your Signature: __________________ 

(Sign exactly as your name appears on the other side of this Note)

 

 

 

 

EXHIBIT B

TO THE INDENTURE

 

[FORM OF FACE OF DEFINITIVE NOTE]

 

THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Regulation S Securities Legend]

 

UNTIL 40 DAYS AFTER THE COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF THIS SECURITY WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

[Restricted Securities/Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

 

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA “), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA, NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

 

 

 

[Definitive Securities Legend]

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER SHALL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

 

 

 

SMURFIT KAPPA ACQUISITIONS
2.75% SENIOR NOTE DUE 2025

 

Common Code: [Regulation S: 111729875] / [Rule 144A: 111729859]

 

ISIN: [Regulation S: XS1117298759] / [Rule 144 A: XS1117298593]

 

No. __

 

SMURFIT KAPPA ACQUISITIONS, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay € ____ to _________ or registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on February 1, 2025.

 

Interest Payment Dates: August 1 and February 1, commencing August 1, 2015.

 

Record Dates: July 15 and January 15.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

 

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated: February 16, 2015

 

 

  SMURFIT KAPPA ACQUISITIONS
   
  By:                   
  Name:   
  Title:  
   
  By:  
  Name:  
  Title:  

 

This is one of the Notes referred to

in the within-mentioned Indenture:

 

Deutsche Bank Luxembourg S.A.,

as Authenticating Agent for

DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee

 

By:           
Name:    
Title:    

 

Dated: ___________________________________

 

 

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA ACQUISITIONS

 

2.75% SENIOR NOTE DUE 2025

 

1.            Interest. SMURFIT KAPPA ACQUISITIONS, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the Notes will be payable semi-annually in arrears on August 1 and February 1 in each year, commencing on August 1, 2015. The Issuer will make each interest payment to the Holders of record on the immediately preceding July 15 and January 15. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the Notes will accrue at the rate of 2.75% per annum. Interest accruing on all Notes then outstanding will be payable in cash. Interest on the Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

The Issuer shall pay interest on overdue principal and on overdue installments of interest (without regard to any applicable grace periods) and on any Additional Amounts from time to time on demand at the rate borne by the Notes plus 1.0% per annum to the extent lawful. Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.            Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on -account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organised or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or beneficial owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or beneficial owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

 

 

 

(2)            any Taxes that would not have been imposed if the Holder or beneficial owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or beneficial owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)            except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)            any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

(7)            a Tax imposed on a payment to an individual and required to be made pursuant to the Directive or any law implementing or complying with, or introduced in order to conform to, such Directive;

 

(8)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

 

 

 

(9)            any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(10)            any combination of clauses (1) through (9) above.

 

Such Additional Amounts will also not be payable where, had the beneficial owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (10) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.            Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are the registered Holders at the close of business on the Record Date immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. With respect to payments in euros, if (i) a Holder has given wire transfer instructions to the Issuer and the Paying Agent in writing, (ii) the Paying Agent has received such written wire transfer instruction at least 15 days prior to the date of the relevant payment and (iii) for so long as the Notes are listed on the Irish Stock Exchange, such holder has also provided such notice to the Paying Agent, then the Issuer will pay all interest, premium and Additional Amounts, if any, on that Holder’s Notes in accordance with those instructions by wire transfer of same day funds to the Paying Agent who in turn will wire such funds to the Holder hereof or to such other Person as the Holder hereof may in writing to the Paying Agent direct. In all other cases, the Issuer may elect to make payments of interest, premium and Additional Amounts, if any, on a Holder’s Notes by check mailed to the Holders at their addresses set forth in the register of Holders. Payments on Notes will be made through the office or agency of the Paying Agent and Registrar for the Notes unless the Issuer elects to make interest payments by check as previously described. If payments are made through the Paying Agent, immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.            Paying Agent and Registrar. Initially, Deutsche Bank AG, London Branch, will act as Principal Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or transfer agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.            Indenture. The Issuer issued the Notes under an Indenture, dated as of February 16, 2015 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent and Transfer Agent, and Deutsche Bank Luxembourg S.A., as Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 2.75% Senior Notes due 2025 (the “Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

 

 

 

6.            Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.            Optional Redemption. Except as set forth below or under Paragraph 8, none of the Notes will be redeemable at the Issuer’s option prior to November 1, 2024.

 

At any time prior to November 1, 2024, the Issuer may redeem the Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such Note on November 1, 2024, plus (ii) all required interest payments due on such Note through November 1, 2024 (excluding accrued but unpaid interest to the date of redemption) computed using a discount rate equal to the Bund Rate as of such date of redemption plus 50 basis points calculated by the Issuer, plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

On or after November 1, 2024, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

If and so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange, and the rules of the Global Exchange Market of the Irish Stock Exchange so require, in the event that the Issuer effects an optional redemption of the Notes, the Issuer will inform the Companies Announcement Office of the Irish Stock Exchange in Dublin of such optional redemption and confirm the aggregate principal amount of the Notes that will remain outstanding following such redemption.

 

8.            Special Tax Redemption. The Issuer may, at its option, redeem the Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise, (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the Notes would be, required to pay Additional Amounts, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such Notes were then due. Prior to the publication or mailing of any notice of redemption of Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the Notes.

 

 

 

 

9.            Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or

 

Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.            Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest, and Additional Amounts, if any, on the relevant interest payment date). Holders of Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

 

 

 

11.            [Intentionally omitted]

 

12.            Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture, the Priority Agreement and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.            Acceptance of Terms and Conditions. The Indenture provides that each Holder, by accepting a Note, consents and agrees to the terms and conditions of the Priority Agreement and acknowledges that, upon written notice by the Parent to the Trustee, the Parent is permitted to terminate the Priority Agreement as to itself, the Issuer and all of the Guarantors in its sole discretion and without any action on the part of the Trustee or the Holders, at any time after which the holders of any of the Existing Senior Notes are no longer entitled to the benefits of, or otherwise subject to the terms or conditions of, the Priority Agreement.

 

14.            [Intentionally omitted]

 

15.            Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar and the Paying Agent and transfer agents may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

16.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

17.            Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

18.            Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

19.            Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding.

 

20.            Restrictive Covenants. The Indenture imposes certain covenants that, among other things, limit the ability of the Issuer and its Subsidiaries to incur additional Indebtedness secured by a Lien, limit the ability of the Issuer’s Subsidiaries to guarantee the Existing Senior Notes or any other Public Indebtedness without guaranteeing the Notes and limit the ability of the Issuer to enter into and consummate certain mergers and consolidations or sales of all or substantially all of its assets. The limitations are subject to a number of important qualifications and exceptions. The Issuer must annually report to the Trustee on compliance with such limitations.

 

 

 

 

21.            Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.            Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

23.            Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer, as such, shall have any liability for any obligations of the Issuer under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

25.            Authentication.      This Note shall not be valid until the Trustee or

 

Authenticating Agent signs the certificate of authentication on this Note.

 

26.            Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.            ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.            Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

 

 

 

ASSIGNMENT FORM

 

To assign this Note fill in the form below:

 

I or we assign and transfer this Note to

 

(Print or type assignee’s name, address and zip code)

 

(Insert assignee’s social security or tax I.D. No.)

 

and irrevocably appoint                           agent to transfer this Note on the books of the Issuer.

 

The agent may substitute another to act for him.

 

Date:_______________ Your Signature: __________________________________

 

 

Sign exactly as your name appears on the other side of this Note.

 

 

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date: ___________________

 

Your Signature: ___________________ 

(Sign exactly as your name appears on the other side of this Note)

 

 

 

 

EXHIBIT C

TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM

RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(TRANSFERS PURSUANT TO SECTION 2.7(B) OF THE INDENTURE)

 

Smurfit Kappa Acquisitions
c/o Deutsche Trustee Company Limited, as Trustee
Winchester House 1 Great Winchester Street London EC2N 2DB
England
Attention: Trust & Security Services

 

Deutsche Bank AG, London Branch, as Principal Paying Agent and Transfer Agent Winchester House

1 Great Winchester Street

London EC2N 2DB 

England

 

RE: 2.75% Senior Notes due 2025 (the “Notes”) of Smurfit Kappa Acquisitions (the “Issuer”)

 

Reference is hereby made to the Indenture, dated as of February 16, 2015 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent and Transfer Agent, and Deutsche Bank Luxembourg S.A., as Registrar. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.

 

This letter relates to € _____ (being any integral multiple of €1,000 in excess of €100,000) principal amount of Notes which are evidenced by Rule 144A Global Notes (ISIN No. XS1117298593; Common Code 111729859) and held by you on behalf of the Common Depositary who in turn is holding an interest therein on behalf of the undersigned (the “Transferor”). The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the Rule 144A Global Note be transferred or exchanged for an interest in the Regulation S Global Note (ISIN XS1117298759; Common Code 111729875) in the form of an equal aggregate principal amount of Notes. If this is a partial transfer, a minimum amount of €100,000 and any integral multiple of €1,000 in excess thereof of the Rule 144A Global Note will remain outstanding.

 

In connection with such request and in respect of such Notes, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S under the Securities Act, and accordingly the Transferor further certifies that:

 

(A)                           (1) the offer of the Notes was not made to a person in the United States;

 

(2)            either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on our behalf knows that the transaction was prearranged with a buyer in the United States,

 

 

 

 

(3)            no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;

 

(4)            the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

(5)            if the transfer is made prior to the expiration of 40 days after the later of the Issue Date and the last date on which the Issuer or any of its affiliates was the owner of such Notes (and the Guarantees) (or any predecessor thereto), the transfer was not made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser of the Notes).

 

OR

 

(B)                           such transfer is being made in accordance with Rule 144 under the Securities Act.

 

 

 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer and the Initial Purchasers.

 

Dated: ___________________

 

  [Name of Transferor]  
     
  By:  
  Name:  
  Title:  
  Telephone No.:  

 

Please print name and address (including zip code number)

 

EXHIBIT D

TO THE INDENTURE

 

FORM OF SUPPLEMENTAL INDENTURE

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of [•], among (i) [subsidiary guarantor] (the “New Guarantor”), a [type of company] organized under the laws of [jurisdiction of organization] with its registered office at [registered office] and a Subsidiary, (ii) Smurfit Kappa Acquisitions, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (iii) Deutsche Trustee Company Limited, as Trustee, (iv) Deutsche Bank AG, London Branch, as Principal Paying Agent and Transfer Agent, and (v) Deutsche Bank Luxembourg S.A., as Registrar.

 

WITNESSETH:

 

WHEREAS the Issuer has heretofore executed an Indenture dated as of February 16, 2015 (the “Indenture”), providing for the issuance of the Notes by the Issuer;

 

WHEREAS Section 4.8 of the Indenture provides that under certain circumstances the Issuer is required to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture providing for a Guarantee of payment of the Notes by the New Guarantor on the terms and conditions set forth herein; and WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.            Agreement to Guarantee. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

 

 

 

2.            Agreement to be Bound. The New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

3.            Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

4.            Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.            Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

7.            Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.            Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

IN WITNESS WHEREOF, he parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

  [NEW GUARANTOR]
     
  By                       
  Name:  
  Title:  

 

SIGNED and DELIVERED as a deed

 

for and on behalf of

 

SMURFIT KAPPA TREASURY

 

by its duly authorised attorney

 

in the presence of [                     ]

 

                        

 

 

 

 

 

  Signature

 

Witness (Signature)

 

Prior Address

 

Witness Occupation

 

 

 

 

  DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee
     
  By:                       
    Name:                
    Title:   

 

  By:                       
    Name:                
    Title:   

 

 

 

 

EXHIBIT E
TO THE INDENTURE

 

LIMITATIONS ON GUARANTEES

 

Limitations for Belgian Guarantors

 

In the case of a Guarantor organized in Belgium (a “Belgian Guarantor”), with respect to the obligations of any obligor which is not a subsidiary of such Belgian Guarantor, its liability under the guarantee clause of the Indenture shall be limited, at any time, to a maximum aggregate amount equal to the greater of:

 

(a)an amount equal to 80% of such Belgian Guarantor’s net assets (as determined in accordance with articles 320 (for SPRL/BVBA) and 617 (for SA/NV) of the Belgian Companies Code and accounting principles generally accepted in Belgium, but not taking intragroup debt into account as debts) as shown by its most recent audited annual financial statements on the date on which the relevant demand is made; and

 

(b)the aggregate amount outstanding on the date on which the relevant demand is made of (i) the amounts (including interest thereon, commissions, costs and fees) made directly or indirectly available to such Belgian Guarantor from the proceeds of the Notes, and (ii) the aggregate amount of any intragroup loans or facilities made to it by the Issuer or any of its Subsidiaries directly and/or indirectly using all or part of the proceeds of the Notes (whether or not such intragroup loan is retained by the Belgian Guarantor for its own purposes or on-lent to a subsidiary of such Belgian Guarantor).

 

Limitations for Czech Guarantors

 

(a)Notwithstanding any other provision of the Indenture, the guarantee, indemnity, reimbursement, undertakings, and other payment obligations and liabilities of Smurfit Kappa Czech s.r.o. under this Indenture, including, without limitation, the obligations and liabilities under or pursuant to Article X of the Indenture, shall not include any obligation and liability which if incurred directly or indirectly would result in the violation of financial assistance rules arising from Section 41 and 200 of the Czech Act on Business Corporations (Act No. 90/2012 Coll., as amended) (the “Czech Financial Assistance Rules”). Nothing in this Clause shall be construed and/or interpreted as an obligation of Smurfit Kappa Czech s.r.o. to take the steps to authorise the financial assistance in accordance with Section 200 or 311 of the Czech Act on Business Corporations (Act No. 90/2012 Coll., as amended).

 

(b)The invalidity, either in whole or in part, of the Guarantee provided by Smurfit Kappa Czech s.r.o. pursuant to Article X of the Indenture due to the characterisation of any or all of the guarantees, obligations, liabilities and undertakings of Smurfit Kappa Czech s.r.o. under Article X of the Indenture as guarantees, obligations, liabilities and undertakings violating the Czech Financial Assistance Rules, shall not constitute an Event of Default for the purposes of Article VI of the Indenture.

 

(c)Notwithstanding any other provision of the Indenture, the guarantee, indemnity, reimbursement and other payments, undertakings, obligations and liabilities of Smurfit Kappa Czech s.r.o. under this Indenture, including, without limitation, the obligations and liabilities under or pursuant to Article X of the Indenture, shall be further limited to an amount equal to the “Czech Limitation Amount”, being:

 

 

 

 

Czech Limitation Amount = (A - O) x 0.9 where:

 

“A” means the net book value of all assets of Smurfit Kappa Czech s.r.o. recorded in its latest annual unconsolidated financial statements available to the Trustee or, if they are more up-to-date and supplied to the Agent within 15 Business Days of its request, and if the Trustee has no reason to doubt the accuracy thereof, its latest interim unconsolidated financial statements;

 

“O” means all liabilities of Smurfit Kappa Czech s.r.o. recorded in its latest annual unconsolidated financial statements available to the Trustee or, if they are more up-to- date and supplied to the Agent within 15 Business Days of its request and if the Trustee has no reason to doubt the accuracy thereto, its latest interim unconsolidated financial statements. For the avoidance of doubt, any identical obligations of Smurfit Kappa Czech s.r.o. mentioned in the previous sentence will only be included in the “O” once.

 

The term “liabilities” shall have the meaning attached to it under the accounting standards applicable to Smurfit Kappa Czech s.r.o., but, notwithstanding the foregoing, shall at all times exclude (aa) equity capital (vlastm kapital) and (bb) the amount of all obligations that are guaranteed by Smurfit Kappa Czech s.r.o. under the obligations and liabilities under or pursuant to Article X of the Indenture.

 

The term “net book value” used for the purpose of the calculation of the Czech Limitation Amount means the book value reduced by corrections and provisions (opravne polozky a opravky (korekce)) as set out in decree no. 500/2002 Coll., as amended (the “Decree”), implementing Act No. 563/1991 Coll., on Accountancy, as amended or in any other legislation which may supersede the Decree in the future.

 

To the extent Smurfit Kappa Czech s.r.o. does not have sufficient cash or assets to be liquidated easily to make a payment on the guarantee, indemnity, reimbursement and other payments, undertakings, obligations and liabilities of Smurfit Kappa Czech s.r.o. under this Indenture, including, without limitation, the obligations and liabilities under or pursuant to Article X of the Indenture, each holder of the Notes and the Trustee undertake to duly consider this situation and the possibility of a payment, including payment in instalments in good faith.

 

 

 

 

Limitations for Danish Guarantors

 

In relation to any Guarantee granted, any security given or any indemnity or reimbursement undertaken under or in connection with this Agreement by a Guarantor which is incorporated in

 

Denmark, its obligations under such guarantees, security, indemnity or reimbursement under this Agreement shall:

 

(1)            be limited if and to the extent required to comply with Danish statutory provisions on unlawful financial assistance including, without limitation, (i) Section 206(1) (as modified by Section 206(2)) of Consolidated Act No. 322 of 11 April 2011 on public and private limited liability companies, as amended and supplemented from time to time (the “Danish Companies Act”) and (ii) Section 210(1) (as modified by Sections 210(2), 211 and 212) of the Danish Companies Act and, accordingly, shall not include, and shall not be or be construed as, any indemnity, guarantee or security in respect of:

 

(a)            any obligations (“Acquisition Debt”) incurred or undertaken in relation to the financing of a direct acquisition of shares issued or to become issued by such Guarantor or by a direct or indirect Qualifying Parent Company of such Guarantor; nor

 

(b)            any obligations other than Acquisition Debt of a Non Qualifying Shareholder.

 

(2)            at any time be limited to a maximum amount equivalent to the net equity of the Guarantor at that time.

 

For the purpose of this clause:

 

(i)            “Qualifying Parent Company” means a parent company which is incorporated under the laws of any country covered by Executive Order No. 275 of 25 March 2010 on loans etc. to foreign parent companies, as amended and supplemented from time to time; and

 

(ii)            “Non Qualifying Shareholder” means any shareholder other than a Qualifying Parent Company.

 

Limitations on French Guarantees

 

(a)            The obligations and liabilities of any Guarantor incorporated in France (a “French Guarantor”) under the Notes and this Indenture and in particular under Article X (Guarantees) of this Indenture shall not include any obligation which if incurred would constitute the provisions of financial assistance within the meaning of article L. 225-216 of the French Commercial Code in connection with the financing or the refinancing of the direct or indirect acquisition or subscription of the shares of such French guarantor.

 

(b)            Misuse of corporate assets. The obligations and liabilities of each French Guarantor under Article X (Guarantees) of this Indenture for the obligations of the Issuer or any other Guarantor which is not a direct or indirect subsidiary of such French Guarantor under the Notes and this Indenture shall be limited, at any time to an amount equal to the aggregate of all amounts made available under the Notes and this Indenture to the Issuer to the extent directly or indirectly onlent to such French Guarantor under intercompany loan arrangements and outstanding at the date a payment is to be made by such French Guarantor under Article X (Guarantees) of this Indenture, it being specified that any payment made by such French Guarantor under this Agreement shall reduce pro tanto the outstanding amount of the intercompany loans due by such French Guarantor under the intercompany loan arrangements referred to above.

 

 

 

 

(c)            Notwithstanding any of the provisions of this Indenture, the obligations and liabilities of each French Guarantor under Article X (Guarantees) of this Indenture for the obligations of any Guarantor which is its direct or indirect subsidiary shall not be limited and shall therefore cover all amounts due by such Guarantor under this Indenture.

 

(d)            It is acknowledged that such French Guarantor is not acting jointly and severally with the other Guarantors and shall not be considered as “co-debiteur solidaire” as to its obligations pursuant to Article X (Guarantees) of this Indenture.

 

Limitations for German Guarantors

 

The right to enforce any obligation under or in connection with this Agreement of any Guarantor incorporated in the form of a limited liability company (GmbH) or a limited partnership (GmbH & Co. KG) in accordance with the laws of the Federal Republic of Germany (a “German Guarantor”) shall, to the extent that such obligation pertains to liabilities of an affiliated company (verbundenes Unternehmen) of the relevant German Guarantor within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (other than the relevant German Guarantor’s subsidiaries), at all times be limited to an amount equal to (i) in case of the relevant German Guarantor being incorporated in form of a limited liability company, such German Guarantor’s net assets, being its total assets less its liabilities (including liability reserves (Ruckstellungen)) less its registered share capital (Stammkapital), and (ii) in case of the relevant German Guarantor being incorporated in form of a limited partnership, such German Guarantor’s general partner’s net assets, being such general partner’s total assets less its liabilities (including liability reserves (Ruckstellungen)) less its registered share capital (Stammkapital) (the “Net Assets”) provided that, to the extent legally permitted, for the purposes of the calculation of the Net Assets the following balance sheet items shall be taken into consideration as follows:

 

(a)            the amount of any increase of the registered share capital out of retained earnings (Kapitalerhohung aus Gesellschaftsmitteln) after the date hereof that has been effected without the prior written consent of the Trustee shall be deducted from the registered share capital; and

 

(b)            loans and other contractual liabilities incurred in negligent or willful violation of the provisions of this Agreement shall be disregarded.

 

In addition, following the enforcement of any obligation of a German Guarantor under or in connection with this Agreement and upon request of the Trustee, the relevant German Guarantor shall realise, to the extent legally permitted and in respect of the relevant German Guarantor’s (or its respective general partner’s) business commercially justifiable, in a situation where such German Guarantor (or in the case of a GmbH & Co. KG, its general partner) does not have sufficient assets to maintain its registered share capital, any and all of its assets that are shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of the assets if such asset is not necessary for the German Guarantor’s (or its respective general partner’s) business (betriebsnotwendig).

 

None of the above restrictions on enforcement shall apply if the enforcement relates to its own obligations of the relevant German Guarantor.

 

Limitations for Gibraltar Guarantors

 

Any Guarantee granted under the Indenture by a Guarantor incorporated in Gibraltar does not apply to any liability to the extent that it would constitute unlawful financial assistance within the meaning of section 72 of the Companies Act of Gibraltar.

 

 

 

 

Limitations for Italian Guarantors

 

The obligations under or in connection with this Indenture of Smurfit Kappa Holdings Italia S.p.A. and Smurfit Kappa Italia S.p.A. (each of them an “Italian Guarantor”) are limited as follows:

 

The obligations of each of them shall at any time:

 

(a)            for the purposes of Article 1938 of the Italian Civil Code, not exceed, in any case, the overall amount of EUR 138,000,000 (or the equivalent in any other currency);

 

(b)            in relation to the guarantee obligations of each of the Italian Guarantors be limited to the aggregate principal amount of any Intercompany Debt (if any) advanced or made available from time to time to that relevant Italian Guarantor, directly or indirectly, by any Obligor (other than, in respect of a Subsidiary of an Italian Guarantor, by such Italian Guarantor or vice versa), provided that such obligations of that relevant Italian Guarantor may not exceed the limit set out in paragraph (a) above.

 

In this clause: "Intercompany Debt" means any loan in any form (including, without limitation, any intercompany loan), documentary credit (including any intercompany documentary credit or other form of financial support) or any other item constituting Financial Indebtedness as defined in the Facilities Agreement dated July 16, 2013 for Smurfit Kappa Corporation Limited, arranged by Citigroup Global Markets Limited, Credit Agricole Corporate and Investment Bank, Danske Bank a/s, HSBC Bank plc, J.P. Morgan Limited and Ulster Bank Ireland Limited with the Royal Bank of Scotland plc as Agent.

 

Limitations for Norwegian Guarantors

 

Any guarantee, indemnity, obligation and/or liability granted, incurred, undertaken, assumed or otherwise agreed by any Guarantor incorporated in Norway (a “Norwegian Guarantor”) shall be limited to an amount equivalent to the higher of (i) the Distributable Equity on the date of this Indenture; (ii) the Distributable Equity at the time or times that payment is requested from the Norwegian Guarantor, save that these limitations shall not apply to any obligations and liabilities of the Norwegian Guarantor in respect of direct or indirect borrowings under the Notes placed at the disposal of the Norwegian Guarantor by the Issuer by way of a loan or otherwise (other than as share capital), where “Distributable Equity” means the distributable equity of the Norwegian Guarantor calculated in accordance with Section 8-1 of the Norwegian Limited Companies Act.

 

The obligations of Smurfit Kappa Norge AS under its Guarantee of the Original Notes shall not exceed €250,000,000.

 

Certain Norwegian rules are deemed internationally mandatory or public policy. Internationally mandatory rules may give basis for a Norwegian court to set aside any or all of the obligations of the Norwegian Guarantor under certain circumstances. Also public policy may prevent a foreign judgment from being enforceable in Norway.

 

 

 

 

Limitations for Spanish Guarantors

 

Any guarantee, indemnity, obligation and/or liability granted, incurred, undertaken, assumed or otherwise agreed by any Guarantor incorporated in Spain (a “Spanish Guarantor”) shall be limited to the following:

 

(a)            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 law on Share Capital Companies (“Real Decreto Legislativo 1/2010 de 2 de Julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital”); and

 

(b)            shall not be granted by the Spanish Guarantor if it is incorporated as a “sociedad de responsabilidad limitada”, to the extent that the same would be in breach of the prohibition contained in article 402 of the Spanish law on Share Capital Companies (“Real Decreto Legislativo 1/2010 de 2 de Julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital”).

 

Each Spanish Guarantor hereby expressly agrees that the scope and provisions of its respective obligations under the Guarantee granted by each of them will not be affected by the fact that any Holder of the Notes and/or the Trustee and/or any Initial Purchaser may vote in favour of: (i) the approval or ratification of a composition agreement ("convenio") as a result of the bankruptcy declaration ("concurso") of a Spanish Guarantor, in accordance with article 135.2 of the Spanish Insolvency Act (“Ley 22/2003, de 9 de julio, Concursal”); or (ii) the approval or execution of a court-sanctioned out-of-court workout (an homologated refinancing agreement (“acuerdo de refinanciacion homologado”)) and which may be entered into as a result of a preinsolvency or insolvency of a Spanish Guarantor (in any case, prior to the declaration of insolvency, whether voluntary or mandatory), under paragraph 9 of the 4th Additional Provision of the Spanish Insolvency Act (“Ley 22/2003, de 9 de julio, Concursal”). Accordingly, each and any of the obligations of a Spanish Guarantor under this Agreement (particularly under the Guarantee) shall remain exactly within the terms stated herein irrespective of whether or not any Holder of the Notes and/or the Trustee and/or any Initial Purchaser votes in favour of the approval or ratification of a composition agreement ("convenio"), or a court-sanctioned out-ofcourt workout (an homologated refinancing agreement (“acuerdo de refinanciacion homologado”)).

 

Limitations for Swedish Guarantors

 

The obligations of any Guarantor incorporated in Sweden in its capacity as a Guarantor (each a “Swedish Guarantor”) under Article X of the Indenture shall be limited if (and only if) required by the provision of the Swedish Companies Act (Aktiebolagslagen (2005:551)) (or its equivalent from time to time) regulating (i) unlawful financial assistance and other prohibited loans and guarantees (Chapter 21, Section 1-3 and 5 (or its equivalent from time to time)) and (ii) distribution of assets (Chapter 17, Section 1-3 (or its equivalent from time to time)) and it is understood that the liability of each Swedish Guarantor under Article X of the Indenture only applies to the extent permitted by the above mentioned provisions of the Swedish Companies Act, provided that all steps available to the Swedish Guarantors and their respective shareholder to authorize their obligations under the Indenture have been taken.

 

 

 

 

Limitations for U.S. Guarantors

 

Notwithstanding anything to the contrary contained in the Indenture, no guaranteed obligation by any Guarantor organized or incorporated under the laws of the United States, any State thereof or the District of Columbia (the “U.S. Guarantors”) under Article X of the Indenture will include an obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a (47) of the Commodity Exchange Act if, and to the extent, all or a portion of such guarantee, or the grant by any such U.S. Guarantor of a security interest to secure such swap, is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of any such U.S. Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act.

 

Additional Waivers for Mexican Guarantors

 

Each Guarantor incorporated under the United Mexican States (each a “Mexican Guarantor”) hereby expressly waives the rights and benefits of priority (beneficio de orden), foreclosing first on the assets of the Issuer or any other Guarantor (beneficio de excusion), division (beneficio de division), requesting assurances from any of the Issuer and all other Guarantors (fiadores) and all other rights and benefits provided in articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2839, 2840, 2841 and those rights and benefits provided for in articles 2814, 2815, 2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2827, 2828, 2836, 2840, 2845, 2846, 2848 and 2849 of the Federal Civil Code of the United Mexican States (Codigo Civil Federal) and similar articles in the Civil Codes of the States of the United Mexican States and the Federal District, which are not reproduced herein since such Mexican Guarantor hereby expressly acknowledges that it knows the contents of each such legal provisions.

 

Each Mexican Guarantor acknowledges that (i) its corporate purpose allows it to grant the guarantee and indemnity provided under this Indenture, and (ii) it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee set forth in this Indenture is knowingly made in contemplation of such benefits.

 

 

 

 

Exhibit 4.2

 

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of July 5, 2024, among (i) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland (the “Issuer”); (ii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors”); and (iii) Deutsche Trustee Company Limited, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS the Issuer, the guarantors party thereto, the Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent and Transfer Agent, and Deutsche Bank Luxembourg S.A., as Registrar, have heretofore executed an Indenture, dated as of February 16, 2015 (as amended or supplemented to the date hereof, the “Indenture”), providing for the issuance of 2.75% Senior Notes due 2025 (the “Notes”) by the Issuer;

 

WHEREAS Smurfit Kappa Group plc, an Irish public limited company (“SKG”), the indirect parent of the Issuer, has entered into a transaction agreement, dated as of September 12, 2023, with WestRock Company, a Delaware corporation (“WestRock”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Smurfit WestRock (the “Transaction Agreement”);

 

WHEREAS, pursuant to the terms of the Transaction Agreement, the parties thereto agreed to consummate a combination (the “Combination”), following which Smurfit WestRock will be the parent of each of SKG and WestRock;

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all of the other applicable provisions of the Indenture and the Notes (the “New Guarantees”); and

 

WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer, the New Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.            Agreement to Guarantee. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.            Agreement to be Bound. Each New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

1

 

 

3.            Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

4.            Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.            Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart signature page by facsimile, e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

7.            Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.            Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

[Signature pages follow]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

Issuer

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT KAPPA

ACQUISITIONS UNLIMITED

COMPANY

by its duly authorized attorney  

    
     
in the presence of    
and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2015 Indenture]

 

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT WESTROCK PLC

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2015 Indenture]

 

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION

 

By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2015 Indenture]

 

 

 

 

WESTROCK COMPANY

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2015 Indenture]

 

 

 

 

WRKCO INC.

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2015 Indenture]

 

 

 

 

WESTROCK MWV, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2015 Indenture]

 

 

 

 

WESTROCK RKT, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2015 Indenture]

 

 

 

 

  Deutsche Trustee Company Limited, as Trustee
   
  By: /s/J. Woodger
    Name: J. Woodger
    Title: Associate Director
     
  By: /s/ Lauren Taylor
    Name: Lauren Taylor
    Title: Associate Director

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2015 Indenture]

 

 

 

 

Exhibit 4.3

 

[Execution Version]

 

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY,

as Issuer,

 

SMURFIT KAPPA FUNDING DESIGNATED ACTIVITY COMPANY,

as Parent and a Parent Guarantor,

 

SMURFIT KAPPA CORPORATION DESIGNATED ACTIVITY COMPANY,

as a Parent Guarantor,

 

SMURFIT KAPPA HOLDINGS LIMITED,

as a Parent Guarantor,

 

SMURFIT KAPPA INVESTMENTS LIMITED,

as a Parent Guarantor,

 

SMURFIT KAPPA GROUP PLC,

as a Parent Guarantor,

 

the Subsidiary Guarantors named herein,

 

DEUTSCHE TRUSTEE COMPANY LIMITED,

as Trustee,

 

DEUTSCHE BANK AG, London Branch,
as Principal Paying Agent

 

and

 

DEUTSCHE BANK LUXEMBOURG S.A.,

as Transfer Agent and Registrar

 

 

 

INDENTURE

 

Dated as of June 28, 2018

 

 

 

2.875% Senior Notes due 2026

 

 

 

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 1
SECTION 1.1 Definitions 1
SECTION 1.2 Incorporation by Reference of TIA 14
SECTION 1.3 Rules of Construction 15
     
ARTICLE II THE NOTES 15
SECTION 2.1 Form and Dating 15
SECTION 2.2 Execution and Authentication 16
SECTION 2.3 Registrar and Paying Agent 17
SECTION 2.4 Paying Agent To Hold Money 18
SECTION 2.5 List of Holders 18
SECTION 2.6 Book-Entry Provisions for Global Notes 18
SECTION 2.7 Registration of Transfer and Exchange 20
SECTION 2.8 Replacement Notes 25
SECTION 2.9 Outstanding Notes 25
SECTION 2.10 Treasury Notes 26
SECTION 2.11 Temporary Notes 26
SECTION 2.12 Cancellation 26
SECTION 2.13 Defaulted Interest 27
SECTION 2.14 ISINs and Common Codes 27
SECTION 2.15 Deposit of Moneys 27
SECTION 2.16 Certain Matters Relating to Global Notes 28
SECTION 2.17 Interest 28
     
ARTICLE III REDEMPTION 28
SECTION 3.1 Optional Redemption 28
SECTION 3.2 Notices to Trustee 28
SECTION 3.3 Selection of Notes to Be Redeemed 28
SECTION 3.4 Notice of Redemption 29
SECTION 3.5 Effect of Notice of Redemption 30
SECTION 3.6 Deposit of Redemption Price 30
SECTION 3.7 Notes Redeemed in Part 31

 

i 

 

 

ARTICLE IV COVENANTS 31
SECTION 4.1 Payment of Notes 31
SECTION 4.2 Maintenance of Office or Agency 31
SECTION 4.3 [Intentionally omitted] 32
SECTION 4.4 [Intentionally omitted] 32
SECTION 4.5 Corporate Existence 32
SECTION 4.6 Payment of Taxes and Other Claims 32
SECTION 4.7 Maintenance of Properties and Insurance 32
SECTION 4.8 Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries 33
SECTION 4.9 Compliance with Laws 33
SECTION 4.10 Negative Pledge 33
SECTION 4.11 Waiver of Stay; Extension or Usury Laws 34
SECTION 4.12 [Intentionally omitted] 34
SECTION 4.13 [Intentionally omitted] 34
SECTION 4.14 [Intentionally omitted] 34
SECTION 4.15 [Intentionally omitted] 34
SECTION 4.16 [Intentionally omitted] 34
SECTION 4.17 Reports 34
SECTION 4.18 [Intentionally omitted] 35
SECTION 4.19 Change of Control Repurchase Event 35
SECTION 4.20 Additional Amounts 37
SECTION 4.21 Payment of Non-Income Taxes and Similar Charges 38
SECTION 4.22 Compliance Certificate; Notice of Default 39
SECTION 4.23 [Intentionally omitted] 39
SECTION 4.24 [Intentionally omitted] 39
SECTION 4.25 [Intentionally omitted] 39
SECTION 4.26 [Intentionally omitted] 39
SECTION 4.27 Further Instruments and Acts 39
     
ARTICLE V SUCCESSOR CORPORATION 39
SECTION 5.1 Consolidation, Merger, and Sale of Assets 39
SECTION 5.2 Successor Corporation Substituted 40
     
ARTICLE VI DEFAULT AND REMEDIES 40
SECTION 6.1 Events of Default 40
SECTION 6.2 Acceleration 42
SECTION 6.3 Other Remedies 42
SECTION 6.4 The Trustee May Enforce Claims Without Possession of Securities 42
SECTION 6.5 Rights and Remedies Cumulative 42
SECTION 6.6 Delay or Omission Not Waiver 42
SECTION 6.7 Waiver of Past Defaults 43
SECTION 6.8 Control by Majority 43
SECTION 6.9 Limitation on Suits 43
SECTION 6.10 Collection Suit by Trustee 44
SECTION 6.11 Trustee May File Proofs of Claim 44
SECTION 6.12 Priorities 44
SECTION 6.13 Restoration of Rights and Remedies 45
SECTION 6.14 Undertaking for Costs 45
SECTION 6.15 Additional Payments 45

 

ii 

 

 

ARTICLE VII TRUSTEE 45
SECTION 7.1 Duties of Trustee 45
SECTION 7.2 Rights of Trustee 47
SECTION 7.3 Individual Rights of Trustee 48
SECTION 7.4 Trustee’s Disclaimer 48
SECTION 7.5 Notice of Default 48
SECTION 7.6 Compensation and Indemnity 48
SECTION 7.7 Replacement of Trustee 50
SECTION 7.8 Successor Trustee by Merger, etc. 51
SECTION 7.9 Eligibility; Disqualification 51
SECTION 7.10 Disqualification; Conflicting Interests 51
SECTION 7.11 [Intentionally omitted] 51
SECTION 7.12 Force Majeure 51
SECTION 7.13 Consequential Loss 51
     
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE 52
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance 52
SECTION 8.2 Legal Defeasance and Discharge 52
SECTION 8.3 Covenant Defeasance 53
SECTION 8.4 Conditions to Legal or Covenant Defeasance 53
SECTION 8.5 Satisfaction and Discharge of Indenture 54
SECTION 8.6 Survival of Certain Obligations 54
SECTION 8.7 Acknowledgment of Discharge by Trustee 55
SECTION 8.8 Application of Trust Moneys 55
SECTION 8.9 Repayment to the Issuer; Unclaimed Money 55
SECTION 8.10 Reinstatement 56
     
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS 56
SECTION 9.1 Without Consent of Holders of Notes 56
SECTION 9.2 With Consent of Holders of Notes 58
SECTION 9.3 Revocation and Effect of Consents 59
SECTION 9.4 Notation on or Exchange of Notes 60
SECTION 9.5 Trustee to Sign Amendments, etc. 60
     
ARTICLE X GUARANTEES 60
SECTION 10.1 Guarantee 60
SECTION 10.2 Limitation on Liability 62
SECTION 10.3 Successors and Assigns 62
SECTION 10.4 No Waiver 62
SECTION 10.5 Modification 62
SECTION 10.6 Release of Guarantor 63
SECTION 10.7 Execution of Supplemental Indenture for Future Guarantors 64

 

iii 

 

 

ARTICLE XI MISCELLANEOUS 64
SECTION 11.1 Notices 64
SECTION 11.2 Communications by Holders with Other Holders 66
SECTION 11.3 Certificate and Opinion as to Conditions Precedent 66
SECTION 11.4 Statements Required in Certificate or Opinion 66
SECTION 11.5 Rules by Trustee, Paying Agent, Registrar 67
SECTION 11.6 Legal Holidays 67
SECTION 11.7 Governing Law 67
SECTION 11.8 Submission to Jurisdiction; Appointment of Agent for Service 67
SECTION 11.9 No Adverse Interpretation of Other Agreements 68
SECTION 11.10 No Personal Liability of Directors, Officers, Employees,Incorporators or Stockholders 68
SECTION 11.11 Currency Indemnity 68
SECTION 11.12 Currency Calculation 69
SECTION 11.13 Information 69
SECTION 11.14 Successors 69
SECTION 11.15 Counterpart Originals 69
SECTION 11.16 Severability 69
SECTION 11.17 Table of Contents, Headings, etc. 69
SECTION 11.18 Termination of Priority Agreement 69

 

SCHEDULES

 

Schedule A - Subsidiary Guarantors

 

EXHIBITS

 

Exhibit A - Form of Global Note
Exhibit B - Form of Definitive Note
Exhibit C - Form of Transfer Certificate for Transfer from Rule 144A Global Note to Regulation S Global Note
Exhibit D - Form of Supplemental Indenture
Exhibit E - Limitations on Guarantees

 

iv 

 

 

INDENTURE, dated as of June 28, 2018, among: (i) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (ii) Smurfit Kappa Funding Designated Activity Company, a designated activity company limited by shares incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Parent”), (iii) Smurfit Kappa Corporation Designated Activity Company, a designated activity company limited by shares incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKC”), (iv) Smurfit Kappa Holdings Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKHL”), (v) Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKIL”), and (vi) Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKG” together with Parent, SKC, SKHL and SKIL, the “Parent Guarantors”), (vii) the Subsidiary Guarantors named in Schedule A hereto, (viii) Deutsche Trustee Company Limited, as Trustee, (ix) Deutsche Bank AG, London Branch, as Principal Paying Agent and (x) Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar.

 

The Issuer has duly authorized the creation and issuance of its 2.875% Senior Notes due 2026 issued on the date hereof (the “Original Notes”) and the Issuer may issue, from time to time after the date hereof, an unlimited principal amount of additional securities having identical terms and conditions as any series of the Original Notes (the “Additional Notes”, and together with the Original Notes, the “Notes”); and, to provide therefor, the Issuer has duly authorized the execution and delivery of this Indenture. The aggregate principal amount of Notes that shall be issued on the date hereof equals €600.0 million.

 

Each party hereto agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes:

 

ARTICLE I

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.1 Definitions. For purposes of this Indenture, unless otherwise specifically indicated herein, the term “consolidated” with respect to any Person refers to such Person consolidated with its Subsidiaries. In addition, for purposes of the following definitions and this Indenture generally, all ratios and computations based on IFRS shall be made in accordance with IFRS and shall be based upon the consolidated financial statements of SKG and its subsidiaries prepared in conformity with IFRS. As used in this Indenture, the following terms shall have the following meanings:

 

“Acceleration Notice” shall have the meaning set forth in Section 6.2.

 

“Additional Amounts” shall have the meaning set forth in Section 4.20(b).

 

“Additional Notes” shall have the meaning set forth in the preamble to this Indenture.

 

 

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control”, as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling”, “controlled by” and “under common control with” shall have correlative meanings.

 

“Agent” means the Principal Paying Agent, any Registrar, Paying Agent, Authenticating Agent or co-Registrar.

 

“Agent Members” shall have the meaning set forth in Section 2.16(a).

 

“Attributable Debt” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with IFRS.

 

“Authenticating Agent” shall have the meaning set forth in Section 2.2.

 

“Authorized Agent” shall have the meaning set forth in Section 11.8.

 

“Bankruptcy Law” means (i) for purposes of the Issuer, any bankruptcy, insolvency, winding-up or other similar statute (including the relevant provisions of the Irish Companies Act 2014 and the examinership court protection procedure), regulation or provision of any jurisdiction in which the Issuer is organized or conducting business and (ii) for purposes of the Trustee and the Holders, Title 11, U.S. Code or any similar United States Federal, state or foreign law for the relief of creditors.

 

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” shall have a corresponding meaning.

 

“Board of Directors” means: (1) with respect to a corporation, the board of directors (or analogous governing body) of the corporation or any committee thereof duly authorized to act on behalf of such board; (2) with respect to a partnership, the board of directors of the general partner of the partnership; (3) with respect to any limited liability company, the managing member or members (or analogous governing body) or any controlling committee of managing members thereof; and (4) with respect to any other Person, the board or committee of such Person serving a similar function.

 

2

 

 

“Board Resolution” means a duly authorized resolution of the Board of Directors of the Issuer certified by an Officer and delivered to the Trustee.

 

“Bund Rate” means, with respect to any relevant date, the rate per annum equal to the equivalent yield to maturity as of such date of the Comparable German Bund Issue, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such relevant date, where:

 

(1)            “Comparable German Bund Issue” means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such redemption date to October 15, 2025 and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro- denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to October 15, 2025; provided, however, that, if the period from such redemption date to October 15, 2025 is less than one year, a fixed maturity of one year shall be used;

 

(2)            “Comparable German Bund Price” means, with respect to any relevant date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations;

 

(3)            “Reference German Bund Dealer” means any dealer of German Bundesanleihe securities appointed by the Issuer in consultation with the Trustee; and

 

(4)            “Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any relevant date, the average as determined by the Issuer of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day preceding the relevant date.

 

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City, Dublin or London.

 

“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with IFRS.

 

“Capital Stock” means:

 

(1)in the case of a corporation, corporate stock;

 

(2)in the case of a company, shares of such company;

 

3

 

 

(3)in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(4)in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person; provided that debt securities convertible into interests specified in (1) through (5) above shall not be deemed “Capital Stock.”

 

“Change in Tax Law” shall have the meaning set forth in Paragraph 8 of any Note.

 

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

 

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

 

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

 

(3)            the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) other than a Parent Guarantor or other direct or indirect parent company that is wholly owned by a Parent Guarantor becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Issuer, measured by voting power rather than number of shares.

 

“Change of Control Offer” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment Date” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Repurchase Event” means a Change of Control and a Rating Event.

 

“Clearing Agency” means one or more of Euroclear, Clearstream Banking, or the successor of either of them, in each case acting directly, or through a custodian, nominee or depository.

 

“Clearstream Banking” means Clearstream Banking S.A.

 

“Closing Date” means the date of this Indenture.

 

“Code” means the United States Internal Revenue Code of 1986, as amended.

 

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“Commission” means the United States Securities and Exchange Commission, or any successor entity thereof from time to time.

 

“Common Depositary” means the common depositary for Euroclear and Clearstream Banking, which shall initially be Deutsche Bank AG, London Branch, or its nominee, which shall initially be BT Globenet Nominees Limited.

 

“Consolidated Net Tangible Assets” means, as of any date of determination, the total amount of all assets of SKG and its Subsidiaries, determined on a consolidated basis in accordance with IFRS, as of the end of the most recent fiscal quarter for which SKG’s financial statements are available (but which may give pro forma effect to the acquisition of any assets or liabilities following the end of such recent fiscal quarter up to and including the determination date), less the sum of:

 

(1)            SKG’s consolidated current liabilities as of such quarter end (other than (a) short- term borrowings and (b) long-term debt due within one year), determined on a consolidated basis in accordance with IFRS; and

 

(2)            SKG’s consolidated assets that are properly classified as intangible assets as of such quarter end, determined on a consolidated basis in accordance with IFRS.

 

“Consolidated Total Assets” means, as of any date of determination, the total amount of all assets of SKG and its Subsidiaries, determined on a consolidated basis in accordance with IFRS, as of the end of the most recent fiscal quarter for which SKG’s financial statements are available.

 

“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or other obligation that, in each case, does not constitute Indebtedness (“primary obligation”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent.

 

“Covenant Defeasance” shall have the meaning set forth in Section 8.3.

 

“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

“Default Interest Payment Date” shall have the meaning set forth in Section 2.13.

 

“Definitive Notes” means Notes in definitive registered form substantially in the form of Exhibit B hereto.

 

“Euroclear” means Euroclear Bank SA/NV.

 

“Euronext Dublin” shall have the meaning set forth in Section 2.3.

 

“Event of Default” shall have the meaning set forth in Section 6.1.

 

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

 

“Existing Senior Notes” means the (i) €500.0 million in aggregate principal amount outstanding of 3.250% Senior Secured Notes due 2021 issued by the Issuer; (ii) €250.0 million in aggregate principal amount outstanding of Senior Secured Floating Rate Notes due 2020 issued by the Issuer; (iii) €400.0 million in aggregate principal amount outstanding of 4.125% Senior Secured Notes due 2020 issued by the Issuer; (iv) €500.0 million in aggregate principal amount outstanding of 2.375% Senior Notes due 2024 issued by the Issuer; and (v) €250.0 million in aggregate principal amount outstanding of 2.75% Senior Notes due 2025 issued by the Issuer.

 

“Global Notes” means the Regulation S Global Note and the Rule 144A Global Note.

 

“guarantee” means a guarantee, contingent or otherwise, of all or any part of any Indebtedness (other than by endorsement of negotiable instruments for collection in the ordinary course of business), including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof.

 

“Guarantee” means any guarantee by a Guarantor of the Issuer’s obligations under this Indenture and the Notes pursuant to the terms of this Indenture.

 

“Guarantee Obligations” shall have the meaning set forth in Section 10.1(a).

 

“Guarantor” means the Parent Guarantors, the Subsidiary Guarantors and their respective successors and assigns, in each case, until the Guarantee of such Person has been released in accordance with the provisions of this Indenture.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements; and (2) other similar agreements or arrangements designed to enable such Person to manage fluctuations in interest rates.

 

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

 

“IFRS” means International Financial Reporting Standards as adopted by the European Union, International Financial Reporting Interpretations Committee as in effect as of the date of this Indenture; provided, however, that all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with IFRS as in effect on the date of such report or other financial information. All ratios and computations based on IFRS contained in this Indenture will be computed in conformity with IFRS.

 

“Indebtedness” means, with respect to any specified Person, any Indebtedness of such Person, whether or not contingent, in respect of:

 

(1)borrowed money;

 

(2)            bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

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(3)banker’s acceptances, letters of credit and similar instruments;

 

(4)Capital Lease Obligations and Attributable Debt;

 

(5)            the deferred balance of the purchase price of any property which remains unpaid more than one year after such property is acquired, except any such balance that constitutes an operating lease payment, accrued expense, trade payable or similar current liability; or

 

(6)any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with IFRS. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person. Notwithstanding the foregoing and for the avoidance of doubt, the term “Indebtedness” shall not include: (1) any lease, concession or license of property which would be considered an operating lease under IFRS as in effect on the Issue Date and any guarantee given by the Issuer or any of its Subsidiaries in the ordinary course of business solely in connection with, and in respect of, the obligations of the Issuer or any of its Subsidiaries under any operating lease; (2) Contingent Obligations in the ordinary course of business; (3) in connection with the purchase by the Issuer or any of its Subsidiaries of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; and (4) any contingent obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage taxes.

 

The amount of any Indebtedness outstanding as of any date shall be:

 

(1)            the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and

 

(2)the principal amount thereof in the case of any other Indebtedness.

 

In addition, Indebtedness of any Person shall include Indebtedness described in the preceding paragraph that would not appear as a liability on the balance sheet of such Person if:

 

(1)            such Indebtedness is the obligation of a partnership or joint venture that is not a Subsidiary of such Person (a “Joint Venture”);

 

(2)            such Person or a Subsidiary of such Person is a general partner of the Joint Venture (a “General Partner”); and

 

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(3)            there is recourse, by contract or operation of law, with respect to the payment of such Indebtedness to property or assets of such Person or a Subsidiary of such Person; and then such Indebtedness shall be included in an amount not to exceed:

 

(a)the lesser of (i) the net assets of the General Partner and (ii) the amount of such obligations to the extent that there is recourse, by contract or operation of law, to the property or assets of such Person or a Subsidiary of such Person; or

 

(b)if less than the amount determined pursuant to clause (i) immediately above, the actual amount of such Indebtedness that is recourse to such Person or a Subsidiary of such Person, if the Indebtedness is evidenced by a writing and is for a determinable amount and the related interest expense shall be included in consolidated interest expense to the extent actually paid by the Issuer or its Subsidiaries.

 

“Indenture” means this Indenture, as amended, modified or supplemented from time to time in accordance with the terms hereof.

 

“Investment Grade Rating” means:

 

(1)            with respect to S&P any of the rating categories from and including AAA to and including BBB-; and

 

(2)            with respect to Moody’s any of the rating categories from and including Aaa to and including Baa3.

 

“Issue Date” means the date on which Notes are originally issued under this Indenture.

 

“Issuer” means the party named as such in this Indenture until a successor replaces it pursuant to this Indenture and thereafter means such successor.

 

“Issuer Order” means a written order or request signed in the name of the Issuer by (i) two Officers of the Issuer, one of whom must be the Chief Executive Officer, the President, the Chief Financial Officer or the Finance Director of the Issuer or any other Officer so authorized or (ii) two members of the Board of Directors of the Issuer, and delivered to the Trustee. “Legal Defeasance” shall have the meaning set forth in Section 8.2.

 

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement.

 

“Maturity Date” means January 15, 2026.

 

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

 

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“Notes” shall have the meaning set forth in the preamble of this Indenture.

 

“Offering Memorandum” means the Offering Memorandum of the Issuer, dated June 25, 2018, relating to the Notes.

 

“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer or the Secretary of the Parent, the Issuer or SKG, as applicable.

 

“Officers’ Certificate” means a certificate signed by two Officers of the Parent, the Issuer or SKG, as applicable.

 

“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee.

 

“Original Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Other Hedging Agreements” means any foreign exchange contracts, currency swap agreements, futures contract, option contract, commodity futures contract, commodity option, commodity swap, commodity collar agreement, commodity cap agreements or other similar agreements or arrangements designed to enable such Person to manage the fluctuations in currency or commodity values.

 

“Parent Guarantors” means the parties named as such in this Indenture or any successor entity.

 

“Paying Agent” shall have the meaning set forth in Section 2.3.

 

“Payment Default” shall have the meaning set forth in Section 6.1(4)(a).

 

“Payor” means the Issuer or a successor thereof.

 

“Permitted Interest” means any Securitization Lien or other Lien that arises in relation to any securitization or other structured finance transaction where:

 

(1)            the primary source or payment of any obligations of the issuer is linked or otherwise related to cash flow from particular property or assets (or where payment of such obligations is otherwise supported by such property or assets); and

 

(2)            recourse to the issuer in respect of such obligations is conditional on cash flow from such property or assets.

 

“Permitted Liens” means:

 

(1)Liens created for the benefit of or to secure the Notes or the Guarantees;

 

(2)Liens in favor of the Issuer or any Subsidiary;

 

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(3)            Liens on property or assets or shares of stock of a Person existing at the time such Person is merged with or into or consolidated with the Issuer or any Subsidiary of the Issuer provided that such Liens were not incurred in contemplation of such merger or consolidation and do not extend to any Principal Property other than such property of the Person merged into or consolidated with the Issuer or the Subsidiary;

 

(4)            Liens on property or assets or shares of stock existing at the time of acquisition thereof by the Issuer or any Subsidiary of the Issuer and purchase money or similar Liens; provided that such Liens were not incurred in contemplation of such acquisition and do not extend to any other property, assets or shares of stock, as applicable;

 

(5)            Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature or arising by operation of law incurred in the ordinary course of business;

 

(6)            Liens to secure certain development, construction, alteration, repair or improvement costs or to secure Indebtedness incurred to provide funds for the reimbursement of funds expended for the foregoing purposes; provided that the Liens securing such costs or Indebtedness shall not extend to any Principal Property other than that being so developed, constructed, altered, repaired or improved;

 

(7)Liens existing on the date of the Indenture;

 

(8)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith;

 

(9)            statutory mechanics’, workmen’s, materialmen’s, operators’ or similar Liens arising by operation of law and arising in the ordinary course of business;

 

(10)          Liens incurred in connection with government contracts, including the assignment of moneys due or to become due thereon;

 

(11)          Liens securing Hedging Obligations or Other Hedging Agreements, in each case not for speculative purposes;

 

(12)          Liens arising in the ordinary course of business and not in connection with the borrowing of money or Liens to secure the payment of pension, retirement or similar obligations;

 

(13)          Liens securing judgments or orders, or securing appeal or other surety bonds related to such judgments or orders, against the Issuer or any Subsidiary of the Issuer relating to litigation being contested in good faith by appropriate proceedings;

 

(14)Liens securing any Permitted Interest;

 

(15)            extensions, substitutions, replacements or renewals of any of the foregoing Indebtedness; provided that (i) such Indebtedness is not increased and (ii) if the assets securing any such Indebtedness are changed in connection with any such extension, substitution, replacement or renewal, the value of the assets securing such Indebtedness is not increased; and

 

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(16)          Liens securing Indebtedness or other obligations in an amount not to exceed the greater of: (i) €500.0 million or (ii) 5.0% of the Consolidated Total Assets.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

“Principal Property” means any building, structure or other facility, together with the land upon which it is erected and fixtures comprising a part thereof or any production, processing or other similar equipment or machinery contained therein, owned or leased by the Issuer or any Subsidiary, used primarily for manufacturing, the net book value on the books of SKG of which on the date as of which the determination is being made exceeds €10.0 million, other than any such building, structure or other facility or any portion thereof or any such fixture, equipment or machinery (together with the land upon which it is erected and fixtures comprising a part thereof) which, in the opinion of the Board of Directors of the Issuer, is not of material importance to the total business conducted by the Issuer and its Subsidiaries taken as a whole.

 

“Priority Agreement” means the Amended and Restated Priority Agreement, dated 16 July 2013, as amended, modified, supplemented or replaced from time to time, among the Parent, certain Subsidiaries of the Parent, the trustees for the Existing Senior Notes and the other parties thereto from time to time.

 

“Private Placement Legend” means the legend set forth in Section 2.7(g).

 

“Public Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (1) a public offering registered under the Securities Act or (2) a private placement to institutional investors that is underwritten for resale in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the Commission for public resale. The term “Public Indebtedness,” for the avoidance of doubt, shall not be construed to include any Indebtedness issued to institutional investors in a direct placement of such Indebtedness that is not underwritten by an intermediary (it being understood that, without limiting the foregoing, a financing that is distributed to not more than ten Persons (provided that multiple managed accounts and affiliates of any such Persons shall be treated as one Person for the purposes of this definition) shall not be deemed underwritten), or any Indebtedness under the Senior Facility Agreement, commercial bank or similar Indebtedness, Capital Lease Obligation or recourse transfer of any financial asset or any other type of Indebtedness Incurred in a manner not customarily viewed as a “securities offering” or in connection with any securitization or other structured finance transaction.

 

“Purchase Agreement” means the Purchase Agreement dated as of the date of the Offering Memorandum, among the Issuer, the Guarantors and the Initial Purchasers.

 

“Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A under the Securities Act.

 

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

 

“Rating Event” means (1) if on the date of first public announcement of an event that constitutes a Change of Control the Notes are then rated by both Rating Agencies as having an Investment Grade Rating, there is a decrease in the rating of the Notes by at least one of the Rating Agencies on or within 90 days of the date of the Change of Control (which period shall be extended for up to, but no longer than, an additional 90 days so long as any Rating Agency has publicly announced that it is considering a possible downgrade of the Notes) which causes the Notes to no longer have an Investment Grade Rating from both Rating Agencies, or (2) if on the date of first public announcement of an event that constitutes a Change of Control the Notes are not then rated by both Rating Agencies as having an Investment Grade Rating, (a) there is a decrease in the Rating Category of the Notes by at least one of the Rating Agencies on or within 90 days of the date of the Change of Control (which period shall be extended for up to, but no longer than, an additional 90 days so long as any Rating Agency has publicly announced that it is considering a possible downgrade of the Notes) which decrease results in the rating on the Notes by such Rating Agency to be at least one Rating Category below the rating of the Notes issued by such Rating Agency immediately preceding the public announcement of the event that continues the relevant Change of Control or (b) a Change of Control is deemed to occur under any series of Existing Senior Notes.

 

“Record Date” means a Record Date specified in the Notes.

 

“Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 7 of the Notes.

 

“Redemption Price” when used with respect to any Note to be redeemed, means the price fixed for such redemption pursuant to this Indenture and Paragraphs 7 and 8 of the Notes.

 

“Registrar” shall have the meaning set forth in Section 2.3.

 

“Regulation S” means Regulation S (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Regulation S Global Note” shall have the meaning set forth in Section 2.1.

 

“Relevant Taxing Jurisdiction” shall have the meaning set forth in Section 4.20(a).

 

“Restricted Lien” shall have the meaning set forth in Section 4.10.

 

“Rule 144” means Rule 144 (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Rule 144A” means Rule 144A (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

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“Rule 144A Global Note” shall have the meaning set forth in Section 2.1.

 

“S&P” means Standard & Poor’s Ratings Group or any successor to the rating agency business thereof.

 

“Securities Act” means the United States Securities Act of 1933, as amended.

 

“Securitization Lien” means a customary back-up security interest granted as part of a sale, lease, transfer or other disposition of assets by the Issuer or any of its Subsidiaries to, either directly or indirectly, any issuer in a securitization or other structured finance transaction.

 

“Senior Facility Agreement” means (i) the senior facilities agreement dated 16 July 2013 as amended and restated by an amendment and restatement agreement dated 10 March 2015 and by an amendment and restatement agreement dated 5 February 2016 between, among others, SKG as the parent, SKC as the company, Citigroup Global Markets Limited, Crédit Agricole Corporate and Investment Bank, Danske Bank A/S, HSBC Bank plc, J.P. Morgan Limited and Ulster Bank Ireland Limited as mandated lead arrangers; and The Royal Bank of Scotland plc (now known as NatWest Markets Plc) as agent, as the same may be amended, supplemented or otherwise modified from time to time and (ii) any renewal, extension, refunding, restructuring, replacement, or refinancing thereof (whether with the original facilities agent and lenders or another facilities agent or agents or other lenders and whether provided under the Senior Facility Agreement or any other agreement or indenture); provided that Indebtedness under the Senior Facility Agreement that constitutes Public Indebtedness shall not be deemed to be Indebtedness under the Senior Facility Agreement for purposes of clause (3) of Section 10.6.

 

“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date hereof.

 

“SKG” means the party named as such in this Indenture, and any successor thereto or any other entity that serves as the ultimate parent company of the Issuer.

 

“Subsidiary” means, with respect to any specified Person:

 

(1)            any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

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

 

provided, however, that for purposes of Section 4.10 and Section 6.1(5), the term “Subsidiary” shall exclude (i) any Subsidiary which is principally engaged in leasing or in financing installment receivables or which is principally engaged in financing the operations of the Issuer and its Subsidiaries or (ii) any financial entity whose accounts as of the date of determination are not required to be consolidated with the accounts of SKG in its audited consolidated financial statements or (iii) any Subsidiary that is an issuer in a securitization or other structured financing transaction, so long as in the case of clauses (ii) or (iii) such Subsidiary does not own any Principal Property.

 

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“Subsidiary Guarantors” means (i) the Subsidiary Guarantors named in Schedule A hereto and (ii) each existing and future Subsidiary of the Issuer that provides a Guarantee in accordance with the covenant set forth in Section 4.8.

 

“Successor Issuer” shall have the meaning set forth in Section 5.1.

 

“Tax Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 8 of the Notes.

 

“Taxes” shall have the meaning set forth in Section 4.20(a).

 

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

 

“Trust Officer” means any officer within Trust & Security Services (or any successor group of the Trustee), including any director, managing director, vice president, assistant vice president, corporate trust officer, assistant corporate trust officer, secretary, assistant secretary, treasurer, assistant treasurer, associate or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at that time shall be such officers having direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such trust matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

“Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and thereafter means such successor.

 

“U.S. Person” means a “U.S. person” as defined in Rule 902 under the Securities Act or any successor rule.

 

“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

SECTION 1.2 Incorporation by Reference of TIA. This Indenture is subject to the provisions of the TIA which as of the date hereof and thereafter as in effect are specifically incorporated by reference in, and made a part of, this Indenture. No other sections of the TIA are applicable to this Indenture.

 

All TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by any rule of the Commission and not otherwise defined herein have the meanings assigned to them therein.

 

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SECTION 1.3         Rules of Construction. Unless the context otherwise requires:

 

(a)a term has the meaning assigned to it;

 

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

 

(c)“or” is not exclusive;

 

(d)the term “including” is not limiting;

 

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

 

(f)provisions apply to successive events and transactions; and

 

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

 

ARTICLE II

 

THE NOTES

 

SECTION 2.1 Form and Dating. The Notes and the notation relating to the Trustee’s certificate of authentication thereof, shall be substantially in the form of Exhibit A or B, as applicable. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage; provided that any such notations, legends or endorsements are in a form reasonably acceptable to the Issuer. The Issuer and the Trustee shall approve the form of the Notes and any notation, legend or endorsement on them. Each Note shall be dated the date of its issuance and shall show the date of its authentication.

 

The terms and provisions contained in the Notes, annexed hereto as Exhibit A or B, shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Issuer, Trustee, the Registrar and the Principal Paying Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. The Notes will initially be represented by the Global Notes.

 

Notes offered and sold to non-U.S. persons outside the United States in offshore transactions in their initial distribution in reliance on Regulation S shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A hereto, with such applicable legends as are provided in Exhibit A, except as otherwise permitted herein (together with all other Notes that are not Rule 144A Global Notes, the “Regulation S Global Notes”). The aggregate principal amount of the Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Regulation S Global Note), in connection with a corresponding decrease or increase in the aggregate principal amount of the Rule 144A Global Note or in consequence of the issue of Definitive Notes or additional Regulation S Global Notes, as hereinafter provided.

 

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Notes offered and sold in their initial distribution to QIBs in reliance on Rule 144A shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A hereto, with such applicable legends as are provided in Exhibit A hereto, except as otherwise permitted herein (the “Initial Rule 144A Global Notes” and together with any other Note evidencing the debt, or any portion of the debt, evidenced by such Initial Rule 144A Global Notes, the “Rule 144A Global Notes”). The aggregate principal amount of the Rule 144A Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Rule 144A Global Note), in connection with a corresponding decrease or increase in the aggregate principal amount of the Regulation S Global Notes or in consequence of the issue of Definitive Notes or additional Rule 144A Global Notes, as hereinafter provided.

 

SECTION 2.2 Execution and Authentication. Two Officers shall sign, or one Officer and one member of the Board of Directors of the Issuer shall sign, or two members of the Board of Directors of the Issuer shall sign, or one Officer shall sign and one Officer, a Secretary or an Assistant Secretary (each of whom shall, in each case, have been duly authorized by all requisite corporate actions) shall attest to, the Notes for the Issuer by manual or facsimile signature.

 

If an Officer or member of the Board of Directors of the Issuer whose signature is on a Note was an Officer or member of such Board of Directors at the time of such execution but no longer holds that office or position at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

 

A Note shall not be valid until an authorized signatory of the Trustee or Deutsche Bank Luxembourg S.A. as the appointed Authenticating Agent manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

 

Except as otherwise provided herein, the aggregate principal amount of Notes which may be outstanding at any time under this Indenture is not limited in amount. The Trustee shall, upon receipt of an Issuer Order in the form of an Officers’ Certificate, authenticate (i) Original Notes for original issue on the Closing Date in an aggregate principal amount of €600.0 million in respect of the Notes and (ii) Additional Notes from time to time for issuance after the Closing Date to the extent permitted hereunder (including under Section 4.3 hereof). Additional Notes will be treated as the same series of Notes as the Original Notes for all purposes under this Indenture, including for purposes of waivers, amendments, redemptions and offers to purchase. Such Issuer Order shall specify the aggregate principal amount of Notes to be authenticated, the series and type of Notes, the date on which the Notes are to be authenticated, the issue price and the date from which interest on such Notes shall accrue, whether the Notes are to be Original Notes or Additional Notes, whether the Notes are to be issued as Definitive Notes or Global Notes and whether or not the Notes shall bear the Private Placement Legend, or such other information as the Trustee may reasonably request. Upon receipt of an Issuer Order in the form of an Officers’ Certificate, the Trustee shall authenticate Notes in substitution of Notes originally issued to reflect any name change of the Issuer. In authenticating the Notes and accepting the responsibilities under this Indenture in relation to the Notes, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.

 

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The Trustee may appoint an authenticating agent (“Authenticating Agent”) reasonably acceptable to the Issuer to authenticate Notes. Unless otherwise provided in the 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 Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer. The Trustee initially appoints the Registrar as Authenticating Agent of the Notes. The Notes shall be issuable only in denominations of €100,000 and any integral multiple of €1,000 in excess thereof.

 

SECTION 2.3 Registrar and Paying Agent. The Issuer shall maintain an office or agency where (a) Definitive Notes may be presented or surrendered for registration of transfer or for exchange (such office or agency, the “Registrar”), (b) Global Notes (and Definitive Notes, if issued) may be presented or surrendered for payment (“Paying Agent”) and (c) notices and demands in respect of such Global Notes (and Definitive Notes, if issued) and this Indenture may be served. In the event that Definitive Notes are issued, the Issuer shall ensure that at least one Person located in London, England and one Person located in Dublin, Ireland (if and for so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange plc trading as Euronext Dublin (“Euronext Dublin”) and the rules of Euronext Dublin so require), in each case reasonably acceptable to the Trustee, is maintained as a Paying Agent and Registrar where (i) in the case of a Registrar, Definitive Notes may be presented or surrendered for registration of transfer or for exchange and notices and demands in respect of such Definitive Notes and this Indenture may be served and (ii) in the case of a Paying Agent, Definitive Notes may be presented or surrendered for payment. The Registrar shall keep a register of the Definitive Notes and of their transfer and exchange. Notices and demands in respect of Global Notes shall be made by the Issuer in accordance with Section 11.1. The Issuer, upon written notice to the Trustee, may have one or more co-Registrars and one or more additional Paying Agents reasonably acceptable to the Trustee. The term “Registrar” includes any co-Registrar and the term “Paying Agent” includes any additional Paying Agent.

 

The Issuer initially appoints Deutsche Bank AG, London Branch, as Principal Paying Agent and Deutsche Bank Luxembourg S.A. as Transfer Agent and Registrar, until such time as any such entity has resigned or a successor has been appointed. In the event that a Paying Agent, Registrar or Transfer Agent is replaced, the Issuer will (so long as the Notes are Global Notes) provide written notice thereof to the Trustee in accordance with Section 11.1. The Issuer may change any Paying Agent, Registrar or Transfer Agent without prior notice to the Holders. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar in respect of the Notes. If and for so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice of the change in Paying Agent, Registrar or Transfer Agent to the Companies Announcement Office of Euronext Dublin.

 

The rights, duties and obligations of the Trustee and the Agents are several and not joint.

 

Payment of principal will be made upon the surrender of Definitive Notes following maturity thereof at the office of the Paying Agent. In the case of a transfer of a Definitive Note in part, upon surrender of the Definitive Note to be transferred, a Definitive Note shall be issued to the transferee in respect of the principal amount transferred and a Definitive Note shall be issued to the transferor in respect of the balance of the principal amount of the transferred Definitive Note at the office of any transfer agent. In all circumstances, the Issuer shall ensure that the Paying Agent shall be located outside Ireland.

 

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For the avoidance of doubt, upon the issuance of Definitive Notes, Holders will be able to receive principal and interest on the Notes and will be able to transfer Definitive Notes at the office of such paying and transfer agent, subject to the right of the Issuer to mail payments in accordance with the terms of this Indenture.

 

Claims against the Issuer for payment of principal, interest and Additional Amounts, if any, on the Notes will become void unless presentment for payment is made (where so required herein) within, in the case of principal and Additional Amounts, if any, a period of ten years or, in the case of interest, a period of five years, in each case from the applicable original payment date therefor.

 

SECTION 2.4 Paying Agent To Hold Money. The Issuer shall require each Paying Agent other than the Trustee and the Principal Paying Agent to agree in writing that each Paying Agent shall hold for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, Additional Amounts, if any, premium, if any, or interest on, the Notes, and shall notify the Trustee of any Default by the Issuer in making any such payment. The Issuer at any time may require a Paying Agent to distribute all money held by it to the Trustee and account for any money disbursed and the Trustee may at any time during the continuance of any payment Default, upon written request to a Paying Agent, require such Paying Agent to distribute all money held by it to the Trustee and to account for any money distributed. Upon distribution to the Trustee of all money that shall have been delivered by the Issuer to the Paying Agent, the Paying Agent shall have no further liability for such money.

 

SECTION 2.5 List of Holders. In the event that Definitive Notes are issued, the Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of Notes. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee before each Record Date and at such other times as the Trustee may request in writing a list as of such date and in such form as the Trustee may reasonably require of the names and addresses of Holders of Notes, which list may be conclusively relied upon by the Trustee.

 

SECTION 2.6 Book-Entry Provisions for Global Notes. (a) The Global Notes initially shall (i) be registered in the name of the nominee of the Common Depositary for the accounts of Euroclear or Clearstream, (ii) deposited on behalf of the purchasers of the Notes with the Common Depositary or its custodian and (iii) bear legends as set forth in Section 2.7(g).

 

(b)            Notwithstanding any other provisions of this Indenture, Global Notes may not be transferred except as a whole by the Common Depositary to a nominee of the Common Depositary or by a nominee of the Common Depositary to the Common Depositary or another nominee of the Common Depositary or, in each case, to another successor of the Common Depositary or a nominee of such successor. Interests of beneficial owners in the Global Notes may be transferred or exchanged for Definitive Notes in accordance with the rules and procedures of the Clearing Agency and the provisions of this Section 2.6, subject to the occurrence of the limited circumstances described in the following sentence. All Global Notes shall be exchanged by the Issuer (with authentication by the Trustee upon receipt of an Issuer Order) for one or more Definitive Notes, if (a) any Clearing Agency notifies the Issuer at any time that it is unwilling or unable to continue to act as a clearing agency and a successor depositary is not appointed within 120 days of such notification, (b) any Clearing Agency so requests following an Event of Default hereunder or (c) in whole (but not in part) at any time if the Issuer in its sole discretion determines and notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes. If an Event of Default occurs and is continuing, the Issuer shall, at the written request delivered through the Common Depositary of the Holder thereof or of the holder of an interest therein, exchange all or part of a Global Note for one or more Definitive Notes (with authentication by the Trustee upon receipt of an Issuer Order); provided, however, that the principal amount at maturity of such Definitive Notes and such Global Note after such exchange shall be €100,000 or integral multiples of €1,000 in excess thereof. Whenever all of a Global Note is exchanged for one or more Definitive Notes, it shall be surrendered by the Holder thereof to the Registrar for cancellation. Whenever a part of a Global Note is exchanged for one or more Definitive Notes, the Global Note shall be surrendered by the Holder thereof to the Registrar who shall cause an adjustment to be made to Schedule A of such Global Note such that the principal amount of such Global Note will be equal to the portion of such Global Note not exchanged and shall thereafter return such Global Note to such Holder. A Global Note may not be exchanged for a Definitive Note other than as provided in this Section 2.6(b). Every Note authenticated and delivered in exchange for or in lieu of a Global Note, or any portion thereof, pursuant to Section 2.8, 2.11 or 3.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Note.

 

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(c)            In connection with the transfer of Global Notes as an entirety to beneficial owners pursuant to paragraph (b) of this Section 2.6, the Global Notes shall be deemed to be surrendered to the Registrar for cancellation, and the Issuer shall execute, and the Trustee shall upon written instructions from the Issuer authenticate and make available for delivery, to each beneficial owner in exchange for its beneficial interest in the Global Notes, an equal aggregate principal amount of Definitive Notes of authorized denominations.

 

(d)           Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.6(b) shall, except as otherwise provided by Section 2.7, bear the Private Placement Legend.

 

(e)            Prior to the expiration of the 40-day distribution compliance period as defined in Regulations S, ownership of Book-Entry Interests will be limited to non-U.S. persons and other persons to whom an offer or sale of the Notes is made pursuant to an exemption from registration under the Securities Act.

 

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SECTION 2.7 Registration of Transfer and Exchange. (a) Notwithstanding any provision to the contrary herein, so long as a Note remains outstanding, transfers of beneficial interests in Global Notes or transfers of Definitive Notes, in whole or in part, shall be made only in accordance with this Section 2.7.

 

(b)            If a holder of a beneficial interest in a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in a Regulation S Global Note, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Regulation S Global Note, such holder may, subject to the rules and procedures of the Clearing Agency, to the extent applicable, and subject to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Regulation S Global Note. Upon (1) written instructions given in accordance with the procedures of the Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Rule 144A Global Note, directing the credit of a beneficial interest in the Regulation S Global Note in an amount equal to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (2) a written order given in accordance with the procedures of the Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account and (3) receipt by the Registrar of a certificate in the form of Exhibit C given by the holder of such beneficial interest stating that the exchange or transfer of such interest has been made pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S or Rule 144 under the Securities Act, the Registrar shall promptly deliver appropriate instructions to the Clearing Agency to reduce or reflect on its records a reduction of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred from the relevant participant, and the Registrar shall promptly deliver appropriate instructions to the Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Regulation S Global Note equal to the reduction in the principal amount of such Rule 144A Global Note.

 

(c)            If a holder of a beneficial interest in a Regulation S Global Note wishes at any time to exchange its interest in such Regulation S Global Note for an interest in a Rule 144A Global Note, or to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Rule 144A Global Note, such holder may, subject to the rules and procedures of the Clearing Agency, to the extent applicable, and to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Rule 144A Global Note. Upon (1) written instructions given in accordance with the procedures of the Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Regulation S Global Note directing the credit of a beneficial interest in the Rule 144A Global Note in an amount equal to the beneficial interest in the Regulation S Global Note to be exchanged or transferred, and (2) a written order given in accordance with the procedures of the Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account, the Registrar shall promptly deliver appropriate instructions to the Clearing Agency to reduce or reflect on its records a reduction of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be exchanged or transferred, and the Registrar shall promptly deliver appropriate instructions to the Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Rule 144A Global Note equal to the reduction in the principal amount of such Regulation S Global Note.

 

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(d)           Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in the other Global Note will, upon transfer, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.

 

(e)            In the event that a Global Note is exchanged for Definitive Notes in registered form without interest coupons, pursuant to Section 2.6(b), or a Definitive Note in registered form without interest coupons is exchanged for another such Definitive Note in registered form without interest coupons, or a Definitive Note is exchanged for a beneficial interest in a Global Note, such Notes may be exchanged or transferred for one another only in accordance with (i) such procedures as are substantially consistent with the provisions of Sections 2.7(b) and (c) above (including the certification requirements intended to ensure that such exchanges or transfers comply with Rule 144, Rule 144A or Regulation S, as the case may be) and as may be from time to time adopted by the Issuer and the Trustee.

 

(f)[Intentionally omitted]

 

(g)            Each Global Note and each Definitive Note issued hereunder shall, upon issuance, bear the legend set forth herein and such legend shall not be removed from such Note except as provided in the next sentence. The legend required for a Note may be removed from a Note if there is delivered to the Issuer and the Trustee such satisfactory evidence, which may include an opinion of independent counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer and the Trustee, that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee, upon receipt of an Issuer Order, shall authenticate and deliver in exchange for such Note another Note or Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Note has been removed from a Note as provided above, no other Note issued in exchange for all or any part of such Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Note is a “restricted security” within the meaning of Rule 144 and instructs the Trustee to cause a legend to appear thereon.

 

The Notes shall bear the following legend (the “Private Placement Legend”) on the face thereof:

 

[IN THE CASE OF RULE 144A NOTES]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

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THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(l), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

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BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

[IN THE CASE OF REGULATION S NOTES]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

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(h)            By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.

 

None of the Trustee, the Registrar or the Principal Paying Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.6 or this Section 2.7. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

 

(i)            Definitive Notes shall be transferable only upon the surrender of a Definitive Note for registration of transfer. When a Definitive Note is presented to the Registrar or a co-registrar with a request to register a transfer, the Registrar shall register the transfer as requested if its requirements for such transfers are met. When Definitive Notes are presented to the Registrar or a co-registrar with a request to exchange them for an equal principal amount of Definitive Notes of other denominations, the Registrar shall make the exchange as requested if the same requirements are met. To permit registration of transfers and exchanges, the Issuer shall execute and, upon receipt of an Issuer Order, the Trustee shall authenticate Definitive Notes at the Registrar’s or co-registrar’s request.

 

(j)            The Issuer shall not be required to make, and the Registrar need not register transfers or exchanges of, Definitive Notes (i) that have been selected for redemption (except, in the case of Definitive Notes to be redeemed in part, the portion thereof not to be redeemed) or (ii) for a period of 15 days prior to a selection of Definitive Notes to be redeemed.

 

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

 

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(l)            No service charge will be made for any registration or transfer or exchange of the Notes, but the Trustee, the Registrar and the Paying Agent and transfer agents may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by this Section 2.7.

 

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

 

(n)           Provided such Notes have been offered pursuant to Rule 144A, Holders of Notes (or holders of interests therein) and prospective purchasers designated by such Holders (or holders of interests therein) will have the right to obtain from the Issuer upon request by such Holders (or holders of interests therein) or prospective purchasers, during any period in which the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, or is exempt from reporting pursuant to 12g3-2(b) under the Exchange Act, the information required by paragraph d(4)(i) of Rule 144A in connection with any transfer or proposed transfer of such Notes.

 

SECTION 2.8 Replacement Notes. If a mutilated Definitive Note is surrendered to the Registrar, if a mutilated Global Note is surrendered to the Issuer or if the Holder of a Note claims that such Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and, upon receipt of an Issuer Order, the Trustee shall authenticate a replacement Note in such form as the Note being replaced if the requirements of the Trustee, the Registrar and the Issuer are met. If required by the Trustee, the Registrar and the Issuer, such Holder must provide an indemnity bond or other indemnity, sufficient in the judgment of the Issuer, the Registrar and the Trustee, to protect the Issuer, the Registrar, the Trustee and any Agent from any loss which any of them may suffer if a Note is replaced. The Issuer may charge such Holder for its reasonable, out-of-pocket expenses in replacing a Note, including reasonable fees and expenses of counsel. Every replacement Note is an additional obligation of the Issuer. The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost, stolen or taken Notes.

 

SECTION 2.9 Outstanding Notes. Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except those canceled by it, those delivered to it for cancellation, those reductions in the Global Note effected in accordance with the provisions hereof and those described in this Section as not outstanding. Subject to Section 2.10, a Note does not cease to be outstanding because the Issuer or any of its Affiliates holds the Note.

 

If a Note is replaced pursuant to Section 2.8 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 2.8.

 

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If the principal amount of any Note is considered paid under Section 4.1, it ceases to be outstanding and interest, and Additional Amounts, if any on it cease to accrue.

 

If on a Redemption Date or the Maturity Date the Paying Agent holds cash in euros sufficient to pay all of the principal, interest and Additional Amounts, if any, due on the Notes payable on that date, then on and after that date such Notes cease to be outstanding and interest and Additional Amounts, if any, on such Notes cease to accrue.

 

SECTION 2.10 Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or its Affiliates shall be disregarded, 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 Trust Officer of the Trustee actually knows are so owned shall be disregarded.

 

SECTION 2.11 Temporary Notes. Until permanent Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Definitive Notes upon receipt of an Issuer Order in the form of an Officers’ Certificate of the Issuer. Such Officers’ Certificate shall specify the amount of temporary Definitive Notes to be authenticated and the date on which the temporary Definitive Notes are to be authenticated. Temporary Definitive Notes shall be substantially in the form of permanent Definitive Notes but may have variations that the Issuer considers appropriate for temporary Definitive Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate upon receipt of an Issuer Order pursuant to Section 2.2 permanent Definitive Notes in exchange for temporary Definitive Notes. Holders of temporary Definitive Notes shall be entitled to all of the benefits of this Indenture.

 

SECTION 2.12 Cancellation. The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent, and no one else, shall cancel and, at the written direction of the Issuer, shall dispose of (subject to the record retention requirements of the Exchange Act) all Notes surrendered for transfer, exchange, payment or cancellation; provided, however, that the Trustee may, but shall not be required to, destroy such canceled Notes. Subject to Section 2.8, the Issuer may not issue new Notes to replace Notes that it has paid or delivered to the Trustee for cancellation. If the Issuer shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.12.

 

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SECTION 2.13 Defaulted Interest. If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest, plus (to the extent lawful) any interest payable on the defaulted interest, to the Holders thereof as of the original Record Date; provided, however, if such default in payment of interest continues for 30 days, the Issuer shall (in the case of Definitive Notes) establish a subsequent special Record Date, which date shall be the fifteenth day next preceding the date fixed by the Issuer for the payment of defaulted interest. If no special Record Date is required to be established pursuant to the immediately preceding sentence, (i) in the case of Definitive Notes, Holders of record on the original Record Date shall be entitled to such payment of defaulted interest and any such interest payable on the defaulted interest and (ii) in the case of Global Notes, Holders on the Default Interest Payment Date (as defined in the next sentence) shall be entitled to such defaulted interest and any such interest payable on the defaulted interest. The Issuer shall notify the Trustee and the Principal Paying Agent in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment (a “Default Interest Payment Date”), and at the same time the Issuer shall deposit with the Trustee or the Principal Paying Agent 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 or the Principal Paying Agent 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 in this Section 2.13; provided, however, that in no event shall the Issuer deposit monies proposed to be paid in respect of defaulted interest later than 10:00 a.m. London time on the Business Day immediately preceding the proposed Default Interest Payment Date with respect to defaulted interest to be paid on the Note. In the case of Definitive Notes, at least 15 days before the subsequent special Record Date, if applicable, the Issuer shall deliver to Holders in accordance with Section 11.1 a notice that states the subsequent special Record Date, the payment date and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid. In the case of Global Notes, at least 15 days before the Default Interest Payment Date, the Issuer shall deliver to Holders in accordance with Section 11.1 a notice that states the Default Interest Payment Date, the payment date and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid.

 

SECTION 2.14 ISINs and Common Codes. The Issuer in issuing the Notes may use ISINs or Common Codes, and if so, the Trustee shall use the ISINs and Common Codes in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of such numbers or codes printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Issuer shall promptly notify the Trustee in writing of any change in any ISIN or Common Code.

 

SECTION 2.15 Deposit of Moneys. Prior to 10:00 a.m. London time on the Business Day immediately preceding each interest payment date and Maturity Date, the Issuer shall have deposited with the Trustee or its designated Paying Agent (which shall be the Principal Paying Agent unless otherwise notified to the Issuer by the Trustee) in immediately available funds money sufficient to make cash payments, if any, due on such interest payment date or Maturity Date, as the case may be, on all Notes then outstanding. Such payments shall be made by the Issuer in a timely manner which permits a Paying Agent (including the Principal Paying Agent) to remit payment to the Holders on such Interest Payment Date or Maturity Date, as the case may be. The Issuer shall, prior to 10:00 a.m. London time on the second Business Day prior to the date on which the Principal Paying Agent receives payment, procure that the bank effecting payment for it confirms by tested telex or SWIFT MT100 message to the Principal Paying Agent that an irrevocable payment instruction has been given.

 

 

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SECTION 2.16 Certain Matters Relating to Global Notes. (a) Members of or participants in a Clearing Agency (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Common Depositary or its nominee, or under the Global Note, and the Common Depositary or its nominee may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Common Depositary or its nominees, or impair, as between the Clearing Agency and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Note.

 

(b)  The holder of a beneficial interest in any Global Note may grant proxies and otherwise authorize any person, including the Clearing Agency and their Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

 

SECTION 2.17 Interest. Interest accrued on the Notes will be payable semi-annually in arrears on January 15 and July 15, commencing January 15, 2019, to Holders of record on the immediately preceding January 1 and July 1. Interest will be calculated on the aggregate nominal amount of Notes outstanding. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable.

 

Interest accrued on all Notes then outstanding will be payable in cash.

 

ARTICLE III

 

REDEMPTION

 

SECTION 3.1 Optional Redemption. The Notes may be redeemed, as a whole or from time to time in part, upon the terms and at the redemption prices set forth in the Notes. Any redemption pursuant to this Section 3.1 shall be made pursuant to the provisions of this Article III. The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

SECTION 3.2 Notices to Trustee. If the Issuer elects to redeem the Notes pursuant to Paragraphs 7 or 8 of such Notes, it shall notify the Trustee and the Principal Paying Agent in writing of the Redemption Date and the principal amount of Notes to be redeemed at least 10 days but not more than 60 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee). The Issuer shall give notice of redemption as required under the relevant paragraph of the Notes pursuant to which such Notes are being redeemed.

 

SECTION 3.3 Selection of Notes to Be Redeemed. If less than all the Notes are to be redeemed pursuant to its terms or the terms of the Indenture at any time, selection of such Notes for redemption will be made by the Trustee or the relevant Registrar in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed, and in compliance with the requirements of each Clearing Agency, or if such Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through a Clearing Agency or such Clearing Agency prescribes no method of selection, on a pro rata basis, by lot; provided, however, that no Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part. In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 10 nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding Notes not previously called for redemption.

 

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SECTION 3.4 Notice of Redemption. At least 10 days but not more than 60 days before a Redemption Date, the Issuer shall deliver to Holders in accordance with Section 11.1, a notice of redemption. Any redemption and notice may, at the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent, and such notice may state that, in the Issuer’s discretion, the redemption date may be delayed without any additional notice until such time as any or all such conditions shall have been satisfied. At the Issuer’s request made at least 10 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee), the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided, however, that the Issuer shall deliver to the Trustee an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the following items. Each notice for redemption shall identify the Notes to be redeemed and shall state:

 

(a)the Redemption Date;

 

(b)           the Redemption Prices and the amount of accrued and unpaid interest, if any, and Additional Amounts, if any, to be paid (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, due on the relevant interest payment date);

 

(c)the Record Date

 

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

 

(e)            that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any;

 

(f)            that, unless the Issuer defaults in making the redemption payment, interest and Additional Amounts, if any, on Notes called for redemption cease to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Notes redeemed;

 

(g)            (i) if any Global Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, interest and Additional Amounts, if any, shall cease to accrue on the portion called for redemption, and upon surrender of such Global Note, the Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unredeemed portion, will be returned and (ii) if any Definitive 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 Definitive Note, a new Definitive Note or Notes in aggregate principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof, upon cancellation of the original Note;

 

(h)            if fewer than all the Notes are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption;

 

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(i)the paragraph of the Notes pursuant to which the Notes are to be redeemed;

 

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

 

(k)            whether the redemption is conditional on any events and, if so, a detailed explanation of such conditions.

 

SECTION 3.5 Effect of Notice of Redemption. Once notice of redemption is given in accordance with Section 3.4, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any. Upon surrender to the Trustee or Paying Agent, such Notes called for redemption shall be paid at the Redemption Price (which shall include accrued and unpaid interest thereon, if any, and Additional Amounts, if any, to the Redemption Date), but (in the case of Definitive Notes) installments of interest, the maturity of which is on or prior to the Redemption Date, shall be payable to Holders of record at the close of business on the relevant Record Dates.

 

SECTION 3.6 Deposit of Redemption Price. Prior to 10:00 a.m. London time on the Business Day immediately preceding the Redemption Date, the Issuer shall deposit with the Trustee or its designated Paying Agent (which shall be the Principal Paying Agent unless otherwise notified to the Issuer by the Trustee) an amount of cash in euros sufficient to pay the Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any, of all Notes to be redeemed on that date. The Paying Agent (including the Principal Paying Agent) shall promptly return to the Issuer any cash in euros so deposited which is not required for that purpose upon the written request of the Issuer. The Issuer shall, prior to 10:00 a.m. London time on the second Business Day prior to the date on which the Principal Paying Agent receives payment, procure that the bank effecting payment for it confirms by tested telex or SWIFT MT100 message to the Principal Paying Agent that an irrevocable payment instruction has been given.

 

If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the payment of such Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any, interest and Additional Amounts, if any, on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Notes are presented for payment. With respect to Definitive Notes, if a Definitive Note is redeemed on or after an interest Record Date but on or prior to the related interest payment date, then any accrued and unpaid interest and Additional Amounts, 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 Issuer to comply with the preceding paragraph, interest and Additional Amounts, if any, shall be paid on the unpaid principal, from the Redemption Date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.1.

 

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SECTION 3.7 Notes Redeemed in Part. Upon surrender and cancellation of a Definitive Note that is redeemed in part, the Issuer shall execute and upon receipt of an Issuer Order the Trustee shall authenticate for the Holder (at the Issuer’s expense) a new Definitive Note equal in principal amount to the unredeemed portion of the Definitive Note surrendered and canceled; provided, however, that each such Definitive Note shall be in a principal amount at maturity of €100,000 or an integral multiple of €1,000 in excess thereof. Upon surrender of a Global Note that is redeemed in part, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the Global Note surrendered; provided, however, that each such Global Note shall be in a principal amount at maturity of €100,000 or an integral multiple of €1,000 in excess thereof.

 

ARTICLE IV

 

COVENANTS

 

SECTION 4.1 Payment of Notes. (a) The Issuer shall pay the principal, premium, if any, interest and Additional Amounts, if any, on the Notes in the manner provided in such Notes and this Indenture. An installment of principal of or interest on the Notes shall be considered paid on the date it is due if the Trustee or the Paying Agent (including the Principal Paying Agent) holds prior to 10:00 a.m. London time on that date money deposited by the Issuer in immediately available funds and designated for, and sufficient to pay the installment in full and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture or the Priority Agreement.

 

(b)  Issuer shall pay, to the extent such payments are lawful, interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and on overdue installments of interest (without regard to any applicable grace periods) and on any Additional Amounts from time to time on demand at the rate borne by the Notes plus 1.0% per annum. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

SECTION 4.2 Maintenance of Office or Agency. The Issuer shall maintain the office or agency (which office may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) required under Section 2.3 where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 11.1. The Issuer and each Guarantor hereby initially designates the office of Smurfit Kappa Packaging LLC, located at 1301 International Parkway, Suite 550, Sunrise, Florida 33323, as its office or agency outside Ireland as required under Section 2.3 hereof.

 

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SECTION 4.3 [Intentionally omitted]

 

SECTION 4.4 [Intentionally omitted]

 

SECTION 4.5 Corporate Existence. Except as otherwise permitted by Article V, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership, limited liability or other existence of each of the Issuer’s Subsidiaries in accordance with the respective organizational documents (as the same may be amended from time to time) of each such Person and the rights (charter and statutory) of the Issuer and each of the Issuer’s Subsidiaries; provided, however, that the Issuer shall not be required to preserve any such right, or the corporate, partnership, limited liability or other existence of any of the Issuer’s Subsidiaries, if the Board of Directors of the Issuer shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and each of its Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be, adverse in any material respect to the Holders.

 

SECTION 4.6 Payment of Taxes and Other Claims. The Issuer shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all material taxes, assessments and governmental charges levied or imposed upon it or any of its Subsidiaries or upon the income, profits or property of it or any of its Subsidiaries and (ii) all lawful claims for labor, materials and supplies which, in each case, if unpaid, might by law become a material liability or Restricted Lien (other than a Permitted Lien) upon the property of it or any of its Subsidiaries; provided, however, that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate provision has been made in accordance with IFRS.

 

SECTION 4.7 Maintenance of Properties and Insurance. (a) The Issuer shall cause all material properties owned by or leased by it or any of its Subsidiaries useful and necessary to the conduct of its business or the business of any of its Subsidiaries to be improved or maintained and kept in normal condition, repair and working order and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in its judgment may be necessary, so that the business carried on in connection therewith may be properly conducted at all times; provided, however, that nothing in this Section 4.7 shall prevent the Issuer or any of its Subsidiaries from discontinuing the use, operation or maintenance of any of such properties, or disposing of any of them, if such discontinuance or disposal is, in the judgment of the Board of Directors of the Issuer or of the board of directors of any Subsidiary of the Issuer concerned, or of an officer (or other agent employed by the Issuer or of any of its Subsidiaries) of the Issuer or any of its Subsidiaries having managerial responsibility for any such property, desirable in the conduct of the business of the Issuer or any Subsidiary of the Issuer, and if such discontinuance or disposal is not adverse in any material respect to the Holders.

 

(b) To the extent available at commercially reasonable rates, the Issuer shall maintain, and shall cause its Subsidiaries to maintain, insurance with responsible carriers against such risks and in such amounts, and with such deductibles, retentions, self-insured amounts and co-insurance provisions, as are customarily carried by similar businesses of similar size.

 

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SECTION 4.8 Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries. The Issuer will not cause or permit any of its Subsidiaries that is not a Guarantor, directly or indirectly, to guarantee, assume or in any other manner become liable for the payment of any Indebtedness under the Existing Senior Notes or any other Public Indebtedness, unless, subject to the limitations set forth in this Indenture, such Subsidiary executes and delivers a supplemental indenture to the Indenture providing for a Guarantee of payment of the Notes by such Subsidiary on the same terms as the guarantee of such Indebtedness within 10 Business Days thereof; provided that if such Indebtedness is by its terms expressly subordinated to the Notes or any Guarantee, any such guarantee, assumption or other liability of such Subsidiary with respect to such Indebtedness shall be subordinated to such Subsidiary’s Guarantee of the Notes at least to the same extent as such Indebtedness is subordinated to the Notes or any other Guarantee; provided that this covenant shall not be applicable to any guarantee of intercompany Indebtedness where the lender under such Indebtedness is party to the Priority Agreement (but only for so long as the Priority Agreement applies to the Notes).

 

The obligations in the foregoing paragraph will not be operative to the extent (1) the Notes have an Investment Grade Rating from the Rating Agencies and (2) none of the Existing Senior Notes benefit from a guarantee from such Subsidiary.

 

To the extent any Subsidiary of the Issuer is required to provide a Guarantee, such Guarantee will be limited as necessary to recognize certain defenses generally available to guarantors (including those that relate to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally) or other considerations under applicable law.

 

SECTION 4.9 Compliance with Laws. The Issuer shall, and shall cause its Subsidiaries to, comply with all applicable statutes, rules, regulations, orders of the relevant jurisdiction in which they are incorporated or organized or in which they carry on business, all political subdivisions thereof, and of any relevant governmental regulatory authority, in respect of the conduct of their respective businesses and the ownership of their respective properties, except for such noncompliances as would not in the aggregate have a material adverse effect on the financial condition or results of operations of the Issuer and its Subsidiaries taken as a whole.

 

SECTION 4.10 Negative Pledge. The Issuer will not, and will not permit any of its Subsidiaries to, secure any Indebtedness for money borrowed by placing a Lien (other than a Permitted Lien) on any Principal Property now or hereafter owned or leased by the Issuer or any Subsidiary of the Issuer or on any shares of stock of any Subsidiary of the Issuer (a “Restricted Lien”) without equally and ratably securing (or securing on a senior basis, in the case of a Lien securing Indebtedness that is by its terms expressly subordinated to the Notes or any Guarantee) all of the Notes, unless after giving effect thereto the aggregate principal amount of all such Indebtedness secured by a Restricted Lien then outstanding would not exceed an amount equal to 15% of Consolidated Net Tangible Assets. The restrictions set forth in the preceding sentence will not apply to any Permitted Lien, and all Indebtedness secured by a Permitted Lien shall be excluded in computing the amount of Indebtedness secured by a Lien outstanding for purposes of this covenant.

 

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Any Lien created for the benefit of the holders of the Notes pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien relating to such Indebtedness that gave rise to the obligation to so secure the Notes.

 

SECTION 4.11 Waiver of Stay; Extension or Usury Laws. The Issuer and each Guarantor covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer or any Guarantor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture, and (to the extent that it may lawfully do so) the Issuer and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants that it will not 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 had been enacted.

 

SECTION 4.12 [Intentionally omitted]

 

SECTION 4.13 [Intentionally omitted]

 

SECTION 4.14 [Intentionally omitted]

 

SECTION 4.15 [Intentionally omitted]

 

SECTION 4.16 [Intentionally omitted]

 

SECTION 4.17 Reports. (a) For so long as any Notes are outstanding, the Issuer will provide to each of the Trustee and the Holders of Notes and potential purchasers of Notes:

 

(1)            within 120 days after the end of SKG’s fiscal year, annual reports containing the following information: (a) audited consolidated balance sheet of SKG as of the end of the two most recent fiscal years and audited consolidated income statements and statements of cash flow of SKG for the two most recent fiscal years, including complete footnotes to such financial statements and the report of the independent auditors on the financial statements; (b) an operating and financial review of the audited financial statements, including a discussion of the results of operations, financial condition and liquidity and capital resources, and a discussion of material commitments and contingencies and critical accounting policies; (c) a description of the industry, business, management and shareholders of SKG, all material affiliate transactions, Indebtedness and material financing arrangements and a description of all material contractual arrangements, including material debt instruments; and (d) risk factors and material recent developments;

 

(2)            within 60 days following the end of each of the first three fiscal quarters in each fiscal year of SKG, quarterly reports containing the following information: (a) an unaudited condensed consolidated balance sheet as of the end of such quarterly period and unaudited condensed statements of income and cash flow for the quarterly and year-to-date periods ending on the unaudited condensed balance sheet date, and the comparable prior year periods for SKG, together with condensed footnote disclosure; (b) an operating and financial review of the unaudited financial statements, including a discussion of the consolidated financial condition and results of operations of SKG and any material change between the current quarterly period and the corresponding period of the prior year; (c) material developments in the business of SKG and its Subsidiaries; (d) financial developments and trends in the business in which SKG and its Subsidiaries are engaged; and (e) material recent developments;

 

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(3)            promptly after the occurrence of (a) any senior management change at SKG; (b) any change in the auditors of SKG; (c) any resignation of a member of the Board of Directors of SKG as a result of a disagreement with SKG; (d) the entering into an agreement that will result in a Change of Control; or (e) any material events that SKG or any of its Subsidiaries announces publicly, in each case, a report containing a description of such events.

 

(b)            For so long as any Notes are outstanding, the Issuer will provide to the Trustee such other information as SKG is required to make publicly available under the requirements of Euronext Dublin or the London Stock Exchange as a result of having its ordinary shares admitted for trading on such exchanges. Upon complying with the public reporting requirements of Euronext Dublin or the London Stock Exchange (regardless of whether SKG’s ordinary shares are admitted for trading on either such exchange, provided that such requirements include an obligation to prepare and make publicly available annual reports, information, documents and other reports with Euronext Dublin or London Stock Exchange, the Issuer will be deemed to have complied with the provisions contained in clauses (1) through (3) of Section 4.17(a).

 

(c)            Notwithstanding the foregoing, the Issuer will be deemed to have provided such information to the Trustee, the Holders of the Notes and prospective purchasers if such information referenced above in clauses (a)(1) through (a)(3) and (b) of this Section 4.17 has been posted on SKG’s website.

 

SECTION 4.18 [Intentionally omitted]

 

SECTION 4.19 Change of Control Repurchase Event. (a) If a Change of Control Repurchase Event occurs, each Holder of Notes will have the right to require the Issuer to repurchase all or any part (equal to €100,000 and integral multiples of €1,000 in excess thereof in the case of Notes that have denominations larger than €100,000) of that Holder’s Notes pursuant to an offer (the “Change of Control Offer”) on the terms set forth in this Indenture. In the Change of Control Offer, the Issuer will offer a payment (the “Change of Control Payment”) in cash equal to 101% of the aggregate principal amount of each of the Notes repurchased plus accrued and unpaid interest and Additional Amounts, if any, thereon, to the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Issuer will mail a notice to each Holder and the Trustee describing the transaction or transactions that constitute the Change of Control Repurchase Event and offering to repurchase Notes on a date (the “Change of Control Payment Date”) specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by this Indenture and described in such notice. The Issuer will comply with the requirements of Section 14(e) of the Exchange Act to the extent applicable and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.19 by virtue of such conflict.

 

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

 

(1)           accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;

 

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

 

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

 

(c)           The Paying Agent will promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes and the Trustee or the Registrar will, upon receipt of an Issuer Order, promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of €100,000 or an integral multiple of €1,000 in excess thereof.

 

(d)           In the case of Definitive Notes, if the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amounts, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest or Additional Amounts will be payable to Holders who tender pursuant to the Change of Control Offer; in the case of Global Notes, the Issuer will pay accrued and unpaid interest to the Change of Control Payment Date to the Holder on such date.

 

(e)           The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date; provided, that if and for so long as the Notes are listed on Euronext Dublin and the rules of Euronext Dublin so require, the Issuer will give notice with respect to the results of the Change of Control Offer to the Companies Announcement Office of Euronext Dublin.

 

(f)           This Section 4.19 will be applicable regardless of whether any other provisions of this Indenture are applicable.

 

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(g)            The Issuer will not be required to make a Change of Control Offer following a Change of Control Repurchase Event if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with this Section 4.19 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) a notice of redemption for all of the outstanding Notes has been given pursuant to this Indenture under Section 3.4 unless and until there is a default in the payment of the applicable redemption price, plus accrued and unpaid interest to the proposed redemption date. Notwithstanding the foregoing, a Change of Control Offer may be made in advance of a Change of Control Repurchase Event, conditional upon the Change of Control, so long as a definitive agreement has been executed that contains terms and provisions that would otherwise result in a Change of Control upon completion of the transactions contemplated thereby.

 

(h)            If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in the foregoing Section 4.19(g) hereof, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the date of redemption.

 

SECTION 4.20 Additional Amounts. (a) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on the Notes or the Guarantees is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the Principal Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Principal Paying Agent whether such payment of principal, premium, if any, or interest on the Notes (whether or not in the form of Definitive Notes) or any Guarantee shall be made to the Holders without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of Taxes is then required by law.

 

(b)            If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes or the Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”).

 

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(c)            The Payor and each Guarantor or successor Guarantor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon written request, the Payor and each Guarantor will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per €1,000 principal amount of the Notes. Copies of such documentation will be available for inspection during ordinary business hours at the office of the Trustee by the Holders of the Notes upon request.

 

(d)            Wherever in this Indenture or the Notes there are mentioned, in any context, (i) the payment of principal, (ii) purchase prices in connection with a purchase of Notes, (iii) interest or (iv) any other amount payable on or with respect to any of the Notes or the Guarantees, such reference shall be deemed to include payment of Additional Amounts as described in this Indenture and the Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

(e)            The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without gross negligence, willful default or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.20.

 

(f)            Obligations under this Section 4.20 will survive any termination, defeasance or discharge of this Indenture.

 

SECTION 4.21 Payment of Non-Income Taxes and Similar Charges. The Payor and each Guarantor or successor Guarantor will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of any Notes or any other document or instrument referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside Ireland, the United States or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes. Obligations under this Section 4.21 will survive any termination, defeasance or discharge of this Indenture.

 

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SECTION 4.22 Compliance Certificate; Notice of Default. The Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year and upon reasonable request by the Trustee, an Officers’ Certificate stating that a review of the activities of the Issuer and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuer has kept, observed, performed and fulfilled, and has caused each of its Subsidiaries to keep, observe, perform and fulfill its obligations under this Indenture and further stating, as to each such Officer signing such certificate, that, to the best of his or her knowledge, the Issuer during such preceding fiscal year has kept, observed, performed and fulfilled, and has caused each of its Subsidiaries to keep, observe, perform and fulfill each and every such covenant (as applicable) contained in this Indenture and no Default occurred during such year and at the date of such certificate there is no Default which has occurred and is continuing or, if such signers do know of such Default, the certificate shall describe its status, with particularity and that, to the best of his or her knowledge, no event has occurred and remains by reason of which payments on the account of the principal of or interest, if any, or Additional Amounts, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action each is taking or proposes to take with respect thereto. The Officers’ Certificate shall also notify the Trustee should the Issuer elect to change the manner in which it fixes its fiscal year end. Upon becoming aware of, and as of such time that the Issuer should reasonably have become aware of, a Default or Event of Default, the Issuer also shall promptly deliver to the Trustee written notice of any events which would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.

 

SECTION 4.23 [Intentionally omitted]

 

SECTION 4.24 [Intentionally omitted]

 

SECTION 4.25 [Intentionally omitted]

 

SECTION 4.26 [Intentionally omitted]

 

SECTION 4.27 Further Instruments and Acts. Upon request of the Trustee, the Issuer and each Guarantor will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.

 

ARTICLE V

 

SUCCESSOR CORPORATION

 

SECTION 5.1 Consolidation, Merger, and Sale of Assets. The Issuer may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Issuer is the surviving corporation); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:

 

(1)            either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, conveyance, lease or other disposition shall have been made (the “Successor Issuer”) is a company organized or existing under the laws of the United States, any state thereof or the District of Columbia or any member of the European Union on the Issue Date;

 

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(2)            the Successor Issuer (if other than the Issuer) assumes all the obligations of the Issuer under the Notes, the Indenture and the Priority Agreement pursuant to agreements reasonably satisfactory to the Trustee;

 

(3)immediately after such transaction, no Default or Event of Default exists; and

 

(4)            each Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations in respect of the Indenture and the Notes (unless such Guarantee shall be released in connection with the transaction and otherwise in compliance with the Indenture).

 

For purposes of this covenant, the sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of a Person, which properties and assets, if held by such Person instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Person on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Person.

 

SECTION 5.2 Successor Corporation Substituted. If any such consolidation, merger, sale, assignment, transfer, conveyance or disposition is consummated without causing an Event of Default, then the Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such Successor Issuer had been named as the Issuer herein, and thereafter (except in the case of a sale, assignment, transfer, lease, conveyance or other disposition) the predecessor corporation will be relieved of all further obligations and covenants under this Indenture and the Notes.

 

ARTICLE VI

 

DEFAULT AND REMEDIES

 

SECTION 6.1 Events of Default. Whenever used herein with respect to the Notes, “Event of Default” means any one of the following events which shall have occurred and be continuing:

 

(1)            a default for 30 days in the payment when due of interest on, or Additional Amounts with respect to, the Notes;

 

(2)            a default in payment when due of the principal of, or premium, if any, on the Notes;

 

(3)            a failure by the Issuer or any of its Subsidiaries for 60 days after notice by the Trustee or by the Holders of at least 25% in principal amount of the Notes to comply with any of the other agreements in this Indenture;

 

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(4)            a default under any mortgage, indenture or instrument under which there is issued and outstanding any Indebtedness for money borrowed by the Issuer or any of its Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the date of this Indenture, if that default:

 

(a)is caused by a failure to pay principal at the final stated maturity of such Indebtedness (after giving effect to any applicable grace period provided in the Indebtedness) (a “Payment Default”); or

 

(b)results in the acceleration of such Indebtedness prior to its express maturity,

 

and in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates €50.0 million or more;

 

(5)          (A) a court having jurisdiction in the premises enters a decree or order for( i) relief in respect of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) appointment of a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary or (iii) the winding up or liquidation of the affairs of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; or (B) the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary (i) commences a voluntary case (including taking any action for the purpose of winding up) under any applicable bankruptcy, insolvency, examination, court protection or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Issuer and its Subsidiaries), would constitute a Significant Subsidiary or (iii) effects any general assignment for the benefit of creditors.

 

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SECTION 6.2 Acceleration. In the case of an Event of Default arising under Section 6.1(5) hereof, the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all the Notes shall become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee (upon request of Holders of at least 25% in principal amount of Notes then outstanding) shall by notice in writing to the Issuer or the Holders of at least 25% in principal amount of the then outstanding Notes may by notice in writing to the Issuer and the Trustee, declare all Notes to be due and payable, and any such notice shall specify the respective Event of Default and that such notice is a “notice of acceleration” (the “Acceleration Notice”), and the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all the Notes shall become immediately due and payable. In the event of any Event of Default specified in Section 6.1(4), such Event of Default and all consequences thereof (including any acceleration or resulting payment default) shall be annulled, waived and rescinded automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose, (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged, (y) the creditors on such Indebtedness have rescinded or waived the acceleration, notice or action, as the case may be, giving rise to such Event of Default or (z) if the default that is the basis for such Event of Default has been cured.

 

SECTION 6.3 Other Remedies. Subject to Section 11.3(c), if an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or, premium, if any, interest or Additional Amounts, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

SECTION 6.4 The Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto.

 

SECTION 6.5 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Notes is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent or subsequent assertion or employment of any other appropriate right or remedy.

 

SECTION 6.6 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Notes.

 

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SECTION 6.7 Waiver of Past Defaults. Subject to Section 9.2, at any time after a declaration of acceleration with respect to the Notes as described in Section 6.2, the Holders of at least a majority in principal amount of the outstanding Notes by written notice to the Trustee, may, on behalf of the Holders of all the Notes, waive any existing Default or Event of Default (except with respect to a continuing Default or Event of Default in the payment of principal, premium, interest, Additional Amounts, if any, and other monetary obligations on the Notes) and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, interest, Additional Amounts, if any, and other monetary obligations on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. Such waiver shall not excuse a continuing Default or Event of Default in the payment of interest, premium, if any, principal or Additional Amounts, if any, on such Note held by a non-consenting Holder, or in respect of a covenant or a provision which cannot be amended or modified without the consent of all Holders. The Issuer shall deliver to the Trustee an Officers’ Certificate stating that the requisite percentage of Holders has consented to such waiver and attaching copies of such consents. When a Default or Event of Default is waived, it is cured and ceases.

 

SECTION 6.8 Control by Majority. Subject to Section 2.10, the Holders of not less than a majority in principal amount of the outstanding Notes may, by written notice to the Trustee, direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. Subject to Section 7.1, however, the Trustee may refuse to follow any direction that conflicts with any law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of another Holder of Notes, or that would involve the Trustee in liability or expense; provided, however, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Prior to taking any action under this Indenture, the Trustee will be entitled to indemnification or security satisfactory to it in its sole discretion against all losses, liabilities, costs and expenses incurred by it in taking or not taking such action.

 

SECTION 6.9 Limitation on Suits. Except to enforce the right to receive payment of principal, premium, if any, interest when due and Additional Amounts, if any, no Holder may pursue any remedy with respect to this Indenture or the Notes, unless:

 

(1)            such Holder has previously given the Trustee written notice that an Event of Default is continuing;

 

(2)            Holders of at least 25% in principal amount of the outstanding Notes have requested the Trustee in writing to pursue the remedy;

 

(3)            such Holders have offered the Trustee security or indemnity reasonably satisfactory to the Trustee, against any loss, liability or expense;

 

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(4)            the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of such security or indemnity; and

 

(5)            the Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.

 

SECTION 6.10 Collection Suit by Trustee. If an Event of Default in payment of principal, premium, if any, interest or Additional Amounts, if any, specified in clause (1) or clause (2) of Section 6.1 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or any other obligor on the Notes for the whole amount of principal and accrued interest remaining unpaid and Additional Amounts, if any, together with interest on overdue principal and, to the extent that payment of such interest is lawful, interest on overdue installments of interest, in each case at the rate per annum borne by the Notes and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6.

 

SECTION 6.11 Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or its property or other obligor on the Notes, its creditors and its property and shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and any custodian in any such judicial proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6 hereof 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 which the Holders of the Notes may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

 

SECTION 6.12 Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:

 

First: to the Trustee, the Agents and their agents and attorneys for amounts due under Section 7.6, including payment of all compensation, fees, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, interest and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, interest and Additional Amounts, if any, respectively; and Third: to the Issuer or any other obligor on the Notes, as their interests may appear, or as a court of competent jurisdiction may direct.

 

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The Trustee, upon prior notice to the Issuer, may fix a record date and a payment date for any payment to Holders pursuant to this Section 6.12; provided that the failure to give any such notice shall not affect the establishment of such record date or payment date for Holders pursuant to this Section 6.12.

 

SECTION 6.13 Restoration of Rights and Remedies. If the Trustee or any Holder of any Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of Notes shall continue as though no such proceeding had been instituted.

 

SECTION 6.14 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes.

 

SECTION 6.15 Additional Payments. In the case of any Event of Default occurring by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Issuer in bad faith with the intention of avoiding payment of the premium that the Issuer would have had to pay if the Issuer then had elected to redeem the Notes pursuant to the optional redemption provisions of this Indenture or was required to repurchase the Notes, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of the Notes.

 

ARTICLE VII

 

TRUSTEE

 

SECTION 7.1 Duties of Trustee. (a) If an Event of Default actually known to a Trust Officer of the Trustee 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 their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request of any of the Holders of Notes, unless they shall have offered to the Trustee indemnity or security to its satisfaction against any loss, liability, cost or expense.

 

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(b)Except during the continuance of an Event of Default actually known to the Trustee:

 

(1)            The Trustee and the Agents will perform only those duties as are specifically set forth herein and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Agents.

 

(2)            In the absence of bad faith on their part, the Trustee and the Agents may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions and such other documents delivered to them pursuant to Section 11.3 furnished to the Trustee or Agent and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are required to be furnished to the Trustee or the Agents, the Trustee or the Agents, as applicable, shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

(c)            The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own bad faith or willful misconduct, except that:

 

(1)This paragraph does not limit the effect of subsection (b) of this Section 7.1.

 

(2)            Neither the Trustee nor Agent shall be liable for any error of judgment made in good faith by a Trust Officer of such Trustee or Agent, unless it is proved that the Trustee or such Agent was grossly 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 6.8.

 

(d)            No provision of this Indenture shall require the Trustee or any Agent to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties hereunder or to take or omit to take any action under this Indenture or take any action at the request or direction of Holders if it shall have reasonable grounds for believing that repayment of such funds is not assured to it or it does not receive an indemnity or security satisfactory to it in its sole discretion against such risk, liability, loss, fee or expense which might be incurred by it in compliance with such request or direction.

 

(e)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to subsections (a), (b), (c) and (d) of this Section 7.1.

 

(f)            Neither the Trustee nor the Agents shall be liable for interest on any money received by it except as the Trustee and any Agent may agree in writing with the Issuer. Money held by the Trustee in trust or any Agent need not be segregated from other funds except to the extent required by law.

 

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(g)           Any provision hereof relating to the conduct or affecting the liability of or affording protection to the Trustee or Agent shall be subject to the provisions of this Section 7.1.

 

(h)           The rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified, are extended to, and shall be enforceable by the Trustee in each of its capacities it which it may serve, and to each Agent, custodian and other person employed to act hereunder.

 

SECTION 7.2         Rights of Trustee. Subject to Section 7.1:

 

(a)            The Trustee and each Agent may rely conclusively on and shall be protected from acting or refraining from acting based upon any document believed by them to be genuine and to have been signed or presented by the proper person. Neither the Trustee nor any Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document, but the Trustee or its Agent, as the case may be, in its discretion, may make reasonable further inquiry or investigation into such facts or matters stated in such document and if the Trustee or its Agent as the case may be, shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, at reasonable times during normal business hours, personally or by agent or attorney. The Trustee shall not be deemed to have notice or any knowledge of any matter (including Defaults or Events of Default) unless a Trust Officer assigned to and working in the Trustee’s Trust & Security Services office has actual knowledge thereof or unless written notice thereof is received by the Trustee, attention: Trust & Security Services and such notice references the Notes generally, the Issuer or this Indenture.

 

(b)           Any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate or Issuer Order and any resolution of the Board of Directors of the Issuer, as the case may be, may be sufficiently evidenced by a Board Resolution.

 

(c)            Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both, which shall conform to the provisions of Sections 11.3 and 11.4. Neither the Trustee nor any Agent shall be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.

 

(d)            The Trustee and any Agent may act through their attorneys and agents and shall not be responsible for the misconduct or negligence of any agent (other than an agent who is an employee of the Trustee or such Agent) appointed with due care.

 

(e)            The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers conferred upon it by this Indenture; provided, however, that the Trustee’s conduct does not constitute willful misconduct, gross negligence or bad faith.

 

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(f)            The Trustee or any Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

(g)            Subject to Section 9.2, the Trustee may (but shall not be obligated to), without the consent of the Holders, give any consent, waiver or approval required by the terms hereof, but shall not without the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding (i) give any consent, waiver or approval or (ii) agree to any amendment or modification of this Indenture, in each case, that shall have a material adverse effect on the interests of any Holder. The Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any consent, waiver, approval, amendment or modification shall have a material adverse effect on the interests of any Holder.

 

SECTION 7.3 Individual Rights of Trustee. The Trustee or any Agent in its respective individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or its respective Affiliates with the same rights it would have if it were not the Trustee or an Agent. However, in the event that the Trustee acquires any conflicting interest, it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee or resign. Any Agent may do the same with like rights. The Trustee must comply with Sections 7.9 and 7.10.

 

SECTION 7.4 Trustee’s Disclaimer. The Trustee and the Agents shall not be responsible for and make no representation as to the validity, effectiveness, correctness or adequacy of this Indenture, any Guarantee, the Priority Agreement or the offering materials related to this Indenture or the Notes; it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision hereof; it shall not be responsible for the use or application of any money received by any Agent and it shall not be responsible for any statement or recital herein of the Issuer, or any document issued in connection with the sale of Notes or any statement in the Notes other than the Trustee’s certificate of authentication.

 

SECTION 7.5 Notice of Default. If an Event of Default occurs and is continuing and a Trust Officer of the Trustee receives actual notice of such event, the Trustee shall mail to each Holder, as their names and addresses appear on the list of Holders described in Section 2.5, notice of the uncured Default or Event of Default within 60 days after the Trustee receives such notice. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, interest or Additional Amounts, if any, on any Note, including the failure to make payment on the Change of Control Payment Date pursuant to a Change of Control Offer, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interest of the Holders.

 

SECTION 7.6 Compensation and Indemnity. The Issuer shall pay to the Trustee and the Agents from time to time such reasonable compensation as the Issuer and the Trustee shall from time to time agree upon in writing for its acceptance of this Indenture and services hereunder. The Trustee’s and the Agents’ compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and the Agent upon request for all reasonable disbursements, expenses and advances (including reasonable fees and expenses of counsel) incurred or made by it in addition to the compensation for their services, except any such disbursements, expenses and advances as may be attributable to the Trustee’s or any Agent’s gross negligence, willful misconduct or bad faith. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and Agents’ accountants, experts and counsel and any taxes or other expenses incurred by a trust created pursuant to Section 8.4 hereof.

 

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The Issuer agrees to pay the reasonable fees and expenses of the Trustee’s legal counsel, Latham & Watkins LLP, no later than the Closing Date in connection with its review, preparation and delivery of this Indenture and related documentation.

 

The Issuer shall indemnify each of the Trustee, any predecessor Trustee and the Agents (which, for purposes of this paragraph, include such Trustee’s and Agents’ affiliates, officers, directors, employees and agents) and in any other capacity the Trustee may serve hereunder for, and hold them harmless against, any and all loss, damage, claim, expense or liability including taxes (other than taxes based on the income of the Trustee) incurred by the Trustee or an Agent without gross negligence, willful misconduct or bad faith on its part, as determined by a court of competent jurisdiction in a final non-appealable decision in connection with acceptance of administration of this trust and performance of its duties under this Indenture, including the reasonable expenses and attorneys’ fees and expenses of defending itself against any claim of liability arising hereunder. The Trustee and the Agents shall notify the Issuer promptly of any claim asserted against the Trustee or such Agent for which it may seek indemnity. However, the failure by the Trustee or the Agent to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee or such Agent shall cooperate in the defense (and may employ its own counsel reasonably satisfactory to the Trustee) at the Issuer’s expense. The Trustee or such Agent may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made without its written consent, which consent shall not be unreasonably withheld.

 

To secure the Issuer’s payment obligations in this Section 7.6, the Trustee and the Agents shall have a senior Lien prior to the Notes against all money or property held or collected by the Trustee and the Agents, in its capacity as Trustee or Agent, except money or property held in trust to pay principal or premium, if any, Additional Amounts, if any, or interest on particular Notes.

 

When the Trustee or an Agent incurs expenses or renders services after the occurrence of an Event of Default specified in clause (7) of Section 6.1, the expenses (including the reasonable fees and expenses of its agents and counsel) and the compensation for the services shall be preferred over the status of the Holders in a proceeding under any Bankruptcy Law and are intended to constitute expenses of administration under any Bankruptcy Law. The Issuer’s obligations under this Section 7.6 and any claim arising hereunder shall survive the termination of this Indenture, the resignation or removal of any Trustee or Agent, the discharge of the Issuer’s obligations pursuant to Article VIII and any rejection or termination under any Bankruptcy Law.

 

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SECTION 7.7 Replacement of Trustee. The Trustee and any Agent may resign at any time upon 30 days’ prior written notice to the Issuer. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee or Agent by so notifying the Issuer and the Trustee or such Agent, as the case may be, in writing and may appoint a successor trustee or agent with the Issuer’s consent. A resignation or removal of the Trustee or any Agent and appointment of a successor Trustee or Agent, as the case may be, shall become effective only upon the successor Trustee’s or Agent’s acceptance of appointment, as the case may be, as provided in this section. The Issuer may remove the Trustee or an Agent if:

 

(1)the Trustee or Agent, as the case may be, fails to comply with Section 7.9;

 

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

 

(3)            a receiver or other public officer takes charge of the Trustee or Agent, as the case may be, or its respective property; or

 

(4)            the Trustee or Agent, as the case may be, becomes incapable of acting with respect to its duties hereunder.

 

If the Trustee or an Agent resigns or is removed or if a vacancy exists in the office of Trustee or Agent for any reason, the Issuer shall notify each Holder of such event and shall promptly appoint a successor Trustee or Agent, as the case may be. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may, with the Issuer’s consent, appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.

 

A successor Trustee or Agent, as the case may be, shall deliver a written acceptance of its appointment to the retiring Trustee or Agent and to the Issuer. Immediately after that, the retiring Trustee or Agent, as the case may be, shall transfer, after payment of all sums then owing to the Trustee or Agent, as the case may be, pursuant to Section 7.6, all property held by it as Trustee or Agent to the successor Trustee or Agent, subject to the Lien provided in Section 7.6, the resignation or removal of the retiring Trustee or Agent, as the case may be, shall become effective, and the successor Trustee or Agent, as the case may be, shall have all the rights, powers and duties of the Trustee or Agent under this Indenture. A successor Trustee or Agent shall mail notice of its succession to each Holder.

 

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

 

If the Trustee or Agent 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 or Agent, as the case may be, and the appointment of a successor thereto.

 

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Notwithstanding replacement of the Trustee or Agent pursuant to this Section 7.7, the Issuer’s obligations under Section 7.6 shall continue for the benefit of the retiring Trustee or Agent, as the case may be, and the Issuer shall pay to any replaced or removed Trustee or Agent all amounts owed under Section 7.6 upon such replacement or removal.

 

SECTION 7.8 Successor Trustee by Merger, etc. If the Trustee or Agent consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall, if such resulting, surviving or transferee corporation is otherwise eligible hereunder, be the successor Trustee. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by consolidation, merger or conversion to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

 

SECTION 7.9 Eligibility; Disqualification. This Indenture shall at all times have a Trustee that is an entity organized and doing business under the laws of the United States or any state thereof, or the United Kingdom, or a Member State of the European Union or a political subdivision thereof, that is authorized under examination by federal or state authorities or by the authorities of the United Kingdom or a Member State of the European Union or a political subdivision thereof. No obligor under the Notes or Person directly controlling, controlled by, or under common control with such obligor shall serve as Trustee.

 

SECTION 7.10 Disqualification; Conflicting Interests. Within 90 days after becoming aware that a material conflict of interest exists between the Trustee’s role as a trustee and any other capacity, the Trustee shall either (i) eliminate such conflict of interest or (ii) resign from office; provided, however, that this Indenture, the Notes and the Guarantees shall remain valid notwithstanding a material conflict of interest of the Trustee.

 

SECTION 7.11 [Intentionally omitted]

 

SECTION 7.12 Force Majeure. In no event shall the Trustee or Agent, in each of its capacities hereunder, be liable for any failure or delay in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo and government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services or the obligations contemplated by this Indenture.

 

SECTION 7.13 Consequential Loss. Notwithstanding anything to the contrary in this Indenture, in no event shall the Trustee or Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of such loss or damage and regardless of the form of action.

 

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ARTICLE VIII

 

SATISFACTION AND DISCHARGE OF INDENTURE

 

SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, with respect to the Notes, elect to have either Section 8.2 or 8.3 be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.

 

SECTION 8.2 Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.2, the Issuer shall be deemed to have been discharged from its obligations with respect to all outstanding Notes and the Guarantors shall be deemed to have been discharged from their obligations with respect to the Guarantees, in each case on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged all the obligations relating to the outstanding Notes and the Notes shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.6, Section 8.8 and the other Sections of this Indenture referred to below in this Section 8.2, and to have satisfied all of their other obligations under such Notes, the Guarantees and this Indenture and cured all then existing Events of Default (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:

 

(1)            the rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, interest and Additional Amounts, if any, on such Notes when such payments are due (including on a Redemption Date) from the trust created pursuant to this Indenture;

 

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

 

(3)            the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s and the Guarantors’ obligations in connection therewith set forth in Article VII hereof; and

 

(4)this Article VIII and the obligations set forth in Section 8.6 hereof.

 

Subject to compliance with this Article VIII, the Issuer may exercise its option under Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 with respect to the Notes. If the Issuer exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.

 

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SECTION 8.3 Covenant Defeasance. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.3, the Issuer and the Guarantors shall be released from any obligations under the covenants contained in Sections 4.5 (other than with respect to the Issuer), 4.8, 4.10, 4.17, 4.19 and 4.27 hereof with respect to the outstanding Notes 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 the purposes hereof, such Covenant Defeasance means that, (i) with respect to the outstanding Notes, the Issuer and the Guarantors 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 (ii) payment on the Notes may not be accelerated because of an Event of Default specified in clause (3) (insofar as it relates to Sections 4.5 (other than with respect to the Issuer), 4.8, 4.10, 4.17, 4.19, and 4.27 hereof), (4) and (5) (other than with respect to the Issuer) of Section 6.1 hereof.

 

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 Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in euros in such amounts as will be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay the principal of, interest, premium and Additional Amounts, if any, on the outstanding Notes on the stated maturity or on the applicable redemption date, as the case may be, and the Issuer must specify whether the Notes are being defeased to maturity or to a particular redemption date;

 

(2)            in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that (A) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for United States federal income tax purposes as a result of such Legal Defeasance and will be subject to United States 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 Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for United States federal income tax purposes as a result of such Covenant Defeasance and will be subject to United States 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;

 

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(4)           no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);

 

(5)           the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and

 

(6)           the Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

SECTION 8.5 Satisfaction and Discharge of Indenture. This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder when:

 

(1)           either (i) all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Issuer) have been delivered to the Trustee for cancellation; or (ii) all Notes that have not been delivered to the Trustee or the Registrar for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable at their stated maturity within one year, or if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee, and the Issuer has irrevocably deposited with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in euro in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee or the Registrar for cancellation for principal, premium and Additional Amounts, if any, and accrued interest to the date of maturity or redemption;

 

(2)           no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under any other Indebtedness in a principal amount in excess of €50.0 million;

 

(3)           the Issuer and each Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and

 

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

 

SECTION 8.6 Survival of Certain Obligations. Notwithstanding the satisfaction and discharge of this Indenture and of the Notes and the Guarantees referred to in Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Issuer, each Guarantor and the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 4.1, 4.2, 4.5 (only with respect to the Issuer), 4.6, 4.7, 4.9, 4.11, 4.20, 4.21, 4.22, Article VII, Article VIII and Section 11.11 shall survive until the Notes are no longer outstanding, and thereafter the obligations of the Issuer and the Trustee under Articles VII and VIII shall survive. Nothing contained in this Article VIII shall abrogate any of the obligations or duties of the Trustee under this Indenture.

 

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SECTION 8.7 Acknowledgment of Discharge by Trustee. Subject to Section 8.10, after (i) the conditions of Section 8.4 or 8.5 have been satisfied, (ii) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer and (iii) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee upon written request shall acknowledge in writing the discharge of all of the Issuer’s obligations under this Indenture except for those surviving obligations specified in this Article VIII.

 

SECTION 8.8 Application of Trust Moneys. All cash in euros deposited with the Trustee pursuant to Section 8.4 or 8.5 in respect of Notes shall be held in trust and applied by it, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Notes of all sums due and to become due thereon for principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash deposited pursuant to Section 8.4 or 8.5 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 outstanding Notes.

 

SECTION 8.9 Repayment to the Issuer; Unclaimed Money. The Trustee and any Paying Agent shall promptly pay or return to the Issuer upon Issuer Order any cash held by them at any time that are not required for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes for which cash has been deposited pursuant to Section 8.4 or 8.5.

 

Any money held by the Trustee in trust or any Paying Agent under this Article, for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on any Note and remaining unclaimed for two years after such principal, premium, if any, interest and Additional Amounts, if any, has become due and payable shall be paid to the Issuer upon Issuer Order or if then held by the Issuer shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer give notice to the Holders or, if and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will inform the Companies Announcement Office of Euronext Dublin or in the case of Definitive Notes, in addition to such publication, mail to Holders by first-class mail, postage prepaid, at their respective addresses as they appear on the registration books of the Registrar (and, if and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will inform the Companies Announcement Office of Euronext Dublin), 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, any unclaimed balance of such money then remaining will be repaid to the Issuer.

 

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SECTION 8.10 Reinstatement. If the Trustee or any Paying Agent is unable to apply any cash in accordance with Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until such time as the Trustee or Paying Agent is permitted to apply all such cash in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however, that if the Issuer has made any payment of interest on, premium, if any, principal and Additional Amounts, if any, of any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

 

ARTICLE IX

 

AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

SECTION 9.1 Without Consent of Holders of Notes. Notwithstanding Section 9.2 hereof, the Issuer, the Guarantors and the Trustee together may amend or supplement this Indenture, the Notes, the Guarantees or the Priority Agreement without the consent of any Holder of a Note:

 

(1)to cure any ambiguity, defect, error or inconsistency;

 

(2)            to add or change any of the provisions of this Indenture or the Notes to such extent as shall be necessary to permit or facilitate the deposit of the Notes with, or on behalf of, a common safekeeper for Euroclear and Clearstream and the registration of such Notes in the name of such common safekeeper, and to otherwise allow the Notes to be held in a manner that will satisfy the Note format eligibility criteria for the Notes to be pledged as collateral in European central banking and monetary operations, or to provide for uncertificated Notes in addition to or in place of certificated Notes;

 

(3)            to provide for the assumption of the Issuer’s or a Guarantor’s obligations to Holders in the case of a merger or consolidation or sale of all or substantially all of the Issuer’s or such Guarantor’s assets, as applicable;

 

(4)            to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Indenture of any Holder;

 

(5)            to allow any Guarantor to execute a supplemental indenture and/or a Guarantee with respect to the Notes;

 

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(6)            to evidence and provide the acceptance of the appointment of a successor Trustee under this Indenture;

 

(7)            to add additional parties to the Priority Agreement to the extent permitted hereunder and thereunder;

 

(8)to terminate the Priority Agreement to the extent permitted hereunder;

 

(9)            to conform the text of this Indenture, the Notes or the Guarantees to any provision of the “Description of Notes” in the Offering Memorandum to the extent such provision in the “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture, the Notes or the Guarantee;

 

(10)          to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture; or

 

(11)          to the extent necessary to provide for the granting of a Lien to secure the Notes and/or any Guarantee as contemplated under Section 4.10 hereof.

 

Notwithstanding anything to the contrary in the paragraph above, in order to effect an amendment authorized by clause (5) above, it shall only be necessary for the supplemental indenture to be duly authorized and executed by the Issuer, such additional Guarantor and the Trustee. Any other amendments permitted by this Indenture need only be duly authorized and executed by Issuer and the Trustee.

 

Without the consent of the Holders of 80% in aggregate principal amount of the Notes then outstanding, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder) release any Guarantor from any of its obligations under its Guarantee or this Indenture, except in accordance with the terms of this Indenture.

 

Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture which adversely affects its own rights, duties or immunities hereunder or otherwise.

 

For so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice to the Companies Announcement Office of Euronext Dublin of any of the foregoing amendments, supplements and waivers and provide, if necessary, a supplement to the Offering Memorandum setting forth reasonable details in connection with any such amendments, supplements or waivers.

 

Notwithstanding anything to the contrary in this Section 9.1, in order to effect an amendment authorized by this Section 9.1 to add a Guarantor under this Indenture, it shall only be necessary for the supplemental indenture providing for the accession of such additional Guarantor to be duly authorized and executed by (i) the Issuer, (ii) such additional Guarantor and (iii) the Trustee.

 

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SECTION 9.2 With Consent of Holders of Notes. The Issuer, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes, the Guarantees or the Priority Agreement with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), and, subject to Section 6.7, any existing Default, an Event of Default or its consequences or compliance with any provision of this Indenture, the Notes, the Guarantees or the Priority Agreement may be waived with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes). However, unless consented to by Holders of at least 90% of the aggregate principal amount of the then outstanding Notes (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), without consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder of Notes):

 

(1)            reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

 

(2)reduce the principal of or change the fixed maturity of any Note;

 

(3)reduce the rate of or change the time for payment of interest on any Note;

 

(4)            reduce the premium or amount payable upon the redemption of any Note or change the time at which any Note may be redeemed as described in Paragraphs 7 and 8 of the Notes;

 

(5)            waive a Default or Event of Default in the payment of principal of, or interest, premium or Additional Amounts, if any, on the Notes (except a rescission of acceleration of such Notes by the Holders of at least a majority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration);

 

(6)make any Note payable in money other than that stated in the Notes;

 

(7)            make any change in the provisions of this Indenture relating to waivers of past Defaults or the legal rights of Holders of such Notes to receive payments of principal of, interest, premium or Additional Amounts, if any, on such Notes or the rights of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes or any guarantee in respect thereof;

 

(8)            waive a redemption payment with respect to any Note (other than a payment required by Section 4.19 hereof);

 

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(9)            make any change in the provisions of this Indenture described in Section 4.20 hereof that adversely affects the rights of any Holder of such Notes or amends the terms of such Notes in a way that would result in a loss of an exemption from any of the Taxes described thereunder or an exemption from any obligation to withhold or deduct Taxes so described thereunder unless the Payor agrees to pay Additional Amounts, if any, in respect thereof; or

 

(10)make any change in the preceding amendment and waiver provisions.

 

Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture adversely affects the Trustee’s own rights, duties or immunities hereunder or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. It shall not be necessary for the consent of the Holders of Notes 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. After an amendment, supplement or waiver under this Section becomes effective, the Issuer shall mail to the Holders of Notes a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.

 

After an amendment, supplement or waiver under the foregoing paragraph becomes effective, the Issuer shall, in the case of Definitive Notes, mail to the Holders of the Notes a notice briefly describing the amendment, supplement or waiver. However, the failure to give such notice to all Holders of the Notes, or any defect therein, will not in any way impair or affect the validity of such amended or supplemented indenture or waiver. In addition, for so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice of any amendment, supplement and waiver to the Companies Announcement Office of Euronext Dublin.

 

SECTION 9.3 Revocation and Effect of Consents. (a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder of a Note.

 

(b)            The Issuer may, but shall not be obligated to, fix a record date for determining which Holders of the Notes must consent to such amendment, supplement or waiver. If the Issuer fixes a record date, the record date shall be fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of Notes furnished to the Trustee prior to such solicitation pursuant to Section 2.5 or (ii) such other date as the Issuer shall designate.

 

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SECTION 9.4 Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall 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 shall, at the cost and expense of the Issuer, execute any amendment, supplement or waiver authorized pursuant to this Article IX; provided, however, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which adversely affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive indemnity reasonably satisfactory to it, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that (i) the execution of any amendment, supplement or waiver authorized pursuant to this Article IX is authorized or permitted by this Indenture and (ii) constitutes the legal, valid and binding obligations of the Issuer enforceable in accordance with its terms; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

ARTICLE X

 

GUARANTEES

 

SECTION 10.1 Guarantee. (a) Subject to the provisions of Section 10.2 hereof and any other limitations under applicable law, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guarantee Obligations”). Each Guarantor further agrees (to the extent permitted by and subject to requirements under applicable law) that the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X (to the extent permitted by applicable and subject to requirements under applicable law) notwithstanding any extension or renewal of any Guarantee Obligation.

 

(b)            To the extent permitted by law, each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Guarantee Obligations and also waives notice of protest for nonpayment, including, for the avoidance of doubt, any right of subrogation in relation to the Holders in respect of any such Guarantee Obligations. Each Guarantor waives notice of any default under the Notes or the Guarantee Obligations. The obligations of each Guarantor hereunder shall not (to the extent permitted by and subject to requirements under applicable law) be affected by: (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer, any other Guarantor or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Priority Agreement or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guarantee Obligations or any of them; or (e) any change in the ownership of the Issuer.

 

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(c)            Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantee Obligations.

 

(d)            Subject to the provisions of Section 10.2 hereof, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantee Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent permitted by law) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantee Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent permitted by law) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Note, the Priority Agreement or any other agreement, (ii) any waiver or modification of any thereof, (iii) any default, failure or delay, willful or otherwise, in the performance of the Guarantee Obligations, or (iv) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.

 

(e)            Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest or Additional Amounts, if any, on any of the Guarantee Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization (including examinership) of the Issuer or otherwise.

 

(f)            Subject to the provisions of Section 10.2 hereof, in furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantee Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee for and on behalf of itself and the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantee Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantee Obligations then due and owing (but only to the extent not prohibited by law). Payments made under this guarantee shall be made to the Trustee on behalf of the Holders.

 

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(g)            Each Guarantor further agrees that, as between it, on the one hand, and the Holders, on the other hand, but subject always to Section 10.2 hereof, (x) the maturity of the Guarantee Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantee Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantee Obligations, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purposes of its Guarantee.

 

(h)            Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.

 

(i)            Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof.

 

SECTION 10.2 Limitation on Liability. (a) Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally or other considerations under applicable law.

 

(b)  The liability of each Parent Guarantor and Subsidiary Guarantor under this Article X shall be limited to the extent of the limitations (if any) set out in Exhibit E or in any supplemental indenture executed by a Subsidiary providing for a Guarantee.

 

SECTION 10.3 Successors and Assigns. This Article X shall be binding upon each Guarantor and its successors and assigns and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.

 

SECTION 10.4 No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article X shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article X at law, in equity, by statute or otherwise.

 

SECTION 10.5 Modification. No modification, amendment or waiver of any provision of this Article X, nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.

 

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No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand in the same, similar or other circumstances.

 

SECTION 10.6       Release of Guarantor. The Guarantee of a Guarantor will be released:

 

(1)            with respect to a Subsidiary Guarantor, in connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Issuer or a Subsidiary;

 

(2)            with respect to a Subsidiary Guarantor, in connection with any sale or other disposition of Capital Stock of that Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) the Issuer or a Subsidiary, if such Subsidiary Guarantor ceases to be a Subsidiary as a result of such sale or other disposition;

 

(3)            with respect to a Guarantor other than SKG, upon the release or discharge of the guarantee or other obligation of such Guarantor under the Senior Facility Agreement or such other guarantee or other obligation that resulted in the creation of such Guarantee, except a release or discharge by or as a result of payment under such guarantee; provided that the guarantee of such Guarantor under the Existing Senior Notes has been released or is concurrently released;

 

(4)            by written notice from the Issuer to the Trustee if such Guarantor does not then guarantee the Issuer’s obligations under any of the Existing Senior Notes (after giving effect to Indebtedness and guarantees concurrently being released or repaid);

 

(5)in accordance with Article IX;

 

(6)            upon the full and final payment and performance of all Obligations of the Issuer and the Guarantors under this Indenture and the Notes;

 

(7)            upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge of this Indenture as provided for in Article VIII; or

 

(8)            with respect to a Subsidiary Guarantor, by written notice from the Issuer to the Trustee upon the Notes receiving an Investment Grade Rating from the Rating Agencies; provided that none of the Existing Senior Notes are guaranteed by any of the Subsidiary Guarantors (after giving effect to guarantees concurrently being released) and no Default or Event of Default shall have occurred and be continuing at the time of such written notice,

 

provided, however, that in the case of clauses (1) and (2) above, the Issuer provides an Officers’ Certificate to the Trustee to the effect that the Issuer will comply with its obligations under Section 4.6.

 

At the request of the Issuer, the Trustee shall execute and deliver an appropriate instrument evidencing such release.

 

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SECTION 10.7 Execution of Supplemental Indenture for Future Guarantors. Each Subsidiary and other Person which is required to become a Guarantor pursuant to Section 4.8 shall promptly execute and deliver to the Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to which such Subsidiary or other Person shall become a Guarantor under this Article X and shall guarantee the Guaranteed Obligations. Concurrently with the execution and delivery of such supplemental indenture, the Issuer shall deliver to the Trustee an Opinion of Counsel and an Officers’ Certificate to the effect (i) that such supplemental indenture has been duly authorized, executed and delivered by such Subsidiary or other Person and (ii) that, subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws affecting the rights of creditors generally and to the principles of equity, whether considered in a proceeding at law or in equity, the Guarantee of such Guarantor is a valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms and to such other matters as the Trustee may reasonably request; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

ARTICLE XI

 

MISCELLANEOUS

 

SECTION 11.1 Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telecopier or first-class mail, postage prepaid, addressed as follows:

 

if to the Issuer or any Guarantor:

 

Attention: Secretary

Smurfit Kappa Acquisitions Unlimited Company

Beech Hill

Clonskeagh

Dublin 4

Ireland

Facsimile: +353-1-283-7113

 

with a copy to:

 

Attention: Mr. Dennis M. Myers, P.C.

Kirkland & Ellis LLP

300 N. LaSalle

Chicago, Illinois 60654

United States

Facsimile: +1-312-862-2200

 

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if to the Trustee:

 

Attention: Trust & Securities Services, Global Debt Services

Deutsche Trustee Company Limited

Winchester House

1 Great Winchester Street

London EC2N 2DB

United Kingdom

Telecopier: +44-207-547-6149

 

if to the Principal Paying Agent:

 

Attention: Trust & Securities Services

Deutsche Bank AG, London Branch, as Principal Paying Agent

Winchester House

1 Great Winchester Street

London EC2N 2DB

United Kingdom

Telecopier: +44-207-547-6149

 

if to the Transfer Agent or Registrar:

 

Deutsche Bank Luxembourg S.A.

2, boulevard Konrad Adenauer

L-1115 Luxembourg

Telecopier: +352-473-136

 

Each of the Issuer and the Trustee by written notice to each other such Person may designate additional or different addresses for notices to such Person. Any notice or communication to the Issuer and the Trustee shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if telecopied; and five calendar days after mailing if sent by first class mail, postage prepaid (except that a notice of change of address and a Notice to the Trustee shall not be deemed to have been given until actually received by the addressee).

 

In the case of Definitive Notes, all notices to Holders of Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. And, so long as any of the Notes are listed on Euronext Dublin, and the rules of Euronext Dublin so require, notices will be given to the Companies Announcement Office of Euronext Dublin. Each such notice shall be deemed to have been given on the date of such publication, or, if published more than once on different dates, on the first date on which publication is made, provided that, if notices are mailed, such notice shall be deemed to have been given on the later of such publication and the seventh day after being so mailed. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of beneficial interests in the Notes and all notices that are required to be delivered to Holders will be deemed delivered for purposes of this Indenture if delivered to such Clearing Agencies for communication to holders of book-entry interests. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to such Person if so mailed within the time prescribed. 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. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

 

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SECTION 11.2 Communications by Holders with Other Holders. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and any other person shall have the protection of Section 312(c) of the TIA.

 

SECTION 11.3 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee or an Agent to take any action under this Indenture, the Issuer shall furnish to the Trustee at the request of the Trustee:

 

(1)            an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.4) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied or complied with; and

 

(2)            an Opinion of Counsel (which shall include the statements set forth in Section 11.4) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied or complied with.

 

In any case where several matters are required to be certified by, or covered by an Opinion of Counsel of, any specified Person, it is not necessary that all such matters be certified by, or covered by the Opinion of Counsel of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an Opinion of Counsel with respect to some matters and one or more such Persons as to other matters, and any such Person may certify or give an Opinion of Counsel as to such matters in one or several documents.

 

Any certificate of an Officer of the Issuer may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such Officer knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the matters upon which his certificate is based are erroneous. Any Opinion of Counsel may be based, and may state that it is so based, insofar as it relates to factual matters, upon a certificate of, or representations by, an officer or officers of the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate 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 11.4 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

(1)            a statement that the Person making such certificate or opinion has read such covenant or condition;

 

66

 

 

(2)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)            a statement that, in the opinion of such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

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

 

provided, however, that an issuer of an Opinion of Counsel may reasonably rely as to any matter of fact on an Officers’ Certificate or a certificate of a public official.

 

SECTION 11.5 Rules by Trustee, Paying Agent, Registrar. The Trustee, the Paying Agent, the Principal Paying Agent or the Registrar may make reasonable rules for its functions.

 

SECTION 11.6 Legal Holidays. If a payment date is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.

 

SECTION 11.7 Governing Law. This Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

SECTION 11.8 Submission to Jurisdiction; Appointment of Agent for Service. To the fullest extent permitted by applicable law, the Issuer and each Guarantor irrevocably submits to the non-exclusive jurisdiction of and venue in any federal or state court in the Borough of Manhattan in the City of New York, County and State of New York, United States of America, in any suit or proceeding based on or arising out of or under or in connection with this Indenture or any of the transactions contemplated hereby, and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Issuer, to the fullest extent permitted by applicable law, irrevocably and fully waives the defense of an inconvenient forum to the maintenance of such suit or proceeding and hereby irrevocably designates and appoints Smurfit Kappa Packaging LLC (the “Authorized Agent”) as its authorized agent upon whom process may be served in any such suit or proceeding. The Issuer represents and warrants that the Authorized Agent has accepted such appointment and irrevocably agreed to act as said agent for service of process. The Issuer agrees that service of process upon its Authorized Agent and written notice of said service to the Issuer, mailed by first class mail or delivered to its Authorized Agent shall be deemed in every respect effective service of process upon the Issuer in any such suit or proceeding. Nothing herein shall affect the right of any person to serve process in any other manner permitted by law. The Issuer agrees that a final action in any such suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other lawful manner. Notwithstanding the foregoing, any action against the Issuer arising out of or based on this Indenture or the transactions contemplated hereby may also be instituted in any competent court in Ireland and the Issuer expressly accepts the jurisdiction of any such court in any such action. The Issuer hereby irrevocably waives, to the extent permitted by law, any immunity to jurisdiction to which it may otherwise be entitled (including immunity to pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Indenture, the Notes or the transactions contemplated hereby. The provisions of this Section 11.8 are intended to be effective upon the execution of this Indenture and the Notes without any further action by the Issuer or the Trustee and the introduction of a true copy of this Indenture into evidence shall be conclusive and final evidence as to such matters. Each and any Guarantor organized in Mexico further agrees that any service of process or notice made at the domicile of the Authorized Agent located at 1301 International Parkway, Suite 550, Sunrise, Florida 33323 (or any other domicile that the Authorized Agent notifies to the parties hereto in writing) shall be acceptable and that they will grant an irrevocable power of attorney to the Authorized Agent for lawsuits and collections to authorize it to act as process agent for the purposes herein.

 

67

 

 

SECTION 11.9 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of any of the Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

SECTION 11.10 No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders. No director, officer, employee, incorporator or shareholder of the Parent Guarantors, the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Parent Guarantors, the Issuer or any Subsidiary Guarantor under the Notes, this Indenture or the Priority Agreement or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

SECTION 11.11 Currency Indemnity. The euro is the sole currency of account and payment for all sums payable by the Issuer and the Guarantors under or in connection with the Notes and the Guarantees, including damages. Any amount received or recovered in a currency other than euro whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, any Guarantor or otherwise by any Holder or by the Trustee, as the case may be, in respect of any sum expressed to be due to it from the Issuer or a Guarantor will only constitute a discharge to the Issuer or the Guarantor, as applicable, to the extent of the euro amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that euro amount is less than the euro amount expressed to be due to the recipient under any Note, any Guarantee or to the Trustee, the Issuer and the Guarantors will indemnify them on a joint and several basis against any loss sustained by such recipient as a result. In any event, the Issuer and the Guarantors will indemnify the recipient on a joint and several basis against the cost of making any such purchase. For the purposes of this Section 11.11, it will be sufficient for the Holder of a Note or the Trustee to certify in a satisfactory manner (indicating the sources of information used) that it would have suffered a loss had an actual purchase of euro been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of euro on such date had not been practicable, on the first date on which it would have been practicable, it being required that the need for a change of date be certified in the manner mentioned above). These indemnities constitute a separate and independent obligation from the Issuer’s and the Guarantors’ other obligations, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by any Holder of a Note or the Trustee and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note, any Guarantee or to the Trustee.

 

68

 

 

SECTION 11.12 Currency Calculation. Except as otherwise expressly set forth herein, for purposes of determining compliance with any euro-denominated restriction herein, the euro- equivalent amount for purposes hereof that is denominated in a non-euro currency shall be calculated based on the relevant currency exchange rate in effect on the date such non-euro amount is incurred or made, as the case may be.

 

SECTION 11.13 Information. For so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, copies of this Indenture will be made available through the offices of the Irish listing agent.

 

SECTION 11.14 Successors. All agreements of the Issuer in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.

 

SECTION 11.15 Counterpart Originals. All parties hereto may sign any number of copies of this Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent one and the same agreement.

 

SECTION 11.16 Severability. In case any one or more of the provisions in this Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

SECTION 11.17 Table of Contents, Headings, etc. The Table of Contents, Cross- Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

SECTION 11.18 Termination of Priority Agreement. On or following the Issue Date, the Trustee, on behalf of itself and the Holders of the Notes and at the request and expense of the Issuer, will accede to the Priority Agreement. Each Holder, by accepting a Note, consents and agrees to the terms and conditions of the Priority Agreement. The Parent shall be entitled, upon written notice by the Parent to the Trustee, to terminate the Priority Agreement as to itself, the Issuer and all of the Guarantors, in its sole discretion and without any action on the part of the Trustee or any of the Holders of the Notes at any time after which the holders of any of the Existing Senior Notes are no longer entitled to the benefits of, or otherwise subject to the terms or conditions of, the Priority Agreement.

 

69

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of the date first written above.

 

  Very truly yours,
   
  ISSUER:
   
  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY
   
  By: /s/ Michael O’Riordan 
    Name: Michael O’Riordan
    Title: Director

 

 GUARANTORS:
  
 SMURFIT KAPPA FUNDING DESIGNATED ACTIVITY COMPANY
 SMURFIT KAPPA CORPORATION DESIGNATED ACTIVITY COMPANY
 SMURFIT KAPPA GROUP PLC
 SMURFIT KAPPA INVESTMENTS LIMITED
 SMURFIT KAPPA HOLDINGS LIMITED
 SMURFIT KAPPA CARTOMILLS SA
 SMURFIT KAPPA TURNHOUT NV
 SMURFIT CANADA HOLDSING LIMITED
 SMURFIT KAPPA DANMARK A/S
 KAPPA PACKAGING DANMARK HOLDING APS
 CUNDELL GROUP HOLDINGS LIMITED
 SMURFIT CORRUGATED HOLDINGS
 SMURFIT CORRUGATED UK LIMITED
  SMURFIT KAPPA INVESTMENTS UK LTD
  SMURFIT KAPPA PACKAGING UK LIMITED
  SMURFIT KAPPA UK LTD
  SMURFIT WARD LIMITED
  SMURFIT KAPPA CELLULOSE DU PIN SAS
  SMURFIT KAPPA PARTICIPATIONS SAS

 

[Signature Page to the Indenture]

 

 

 

 

  SMURFIT KAPPA WREXEN BETEILIGUNGS GMBH
  SMURFIT KAPPA WREXEN PAPER & BOARD GMBH
  SMURFIT KAPPA DEUTSCHLAND GMBH
  SMURFIT KAPPA GMBH
  SMURFIT KAPPA GRUNDSTÜCKS-VERWALTUNGSGESELLSCHAFT EUROPA CARTON MBH
  SMURFIT KAPPA HERZBERGER GRUNDSTÜCKS GMBH
  SMURFIT KAPPA HERZBERGER WELLPAPPE GMBH
  SMURFIT KAPPA LEASING GMBH SMURFIT KAPPA PACKAGING GMBH
  SMURFIT KAPPA PAPIERVERWALTUNGSGESELLSCH AFT WREXEN MBH
  SMURFIT KAPPA RECYCLING GMBH SMURFIT KAPPA WELLPAPPENWERK
  SCHNEVERDINGEN GMBH SMURFIT KAPPA
  WELLPAPPENWERK WAREN GMBH
  SMURFIT KAPPA ZÜLPICH PAPIER GMBH
  SMURFIT KAPPA ZÜLPICH PAPIERMASCHINE GMBH BELGRAY HOLDINGS UNLIMITED COMPANY
  BRENCHLEY LIMITED
  CLAYSTOKE DESIGNATED ACTIVITY COMPANY
  DAMOUS LIMITED
  GORDA LIMITED
  IONA PRINT LIMITED
  JEFFERSON SMURFIT & SONS, LIMITED
  MARGRAVE INVESTMENTS LIMITED SMURFIT INTERNATIONAL
  DESIGNATED ACTIVITY COMPANY SMURFIT INVESTMENTS (IRELAND) LIMITED
  SMURFIT KAPPA IRELAND LIMITED
  SMURFIT KAPPA IRISH PAPER SACKS LIMITED

 

[Signature Page to the Indenture]

 

 

 

 

  SMURFIT KAPPA LEASING UNLIMITED COMPANY
  SMURFIT KAPPA NEWS PRESS LIMITED
  SMURFIT KAPPA PACKAGING LIMITED SMURFIT KAPPA SERVICES LIMITED SMURFIT KAPPA TREASURY
  UNLIMITED COMPANY
  SMURFIT KAPPA TREASURY FUNDING
  DESIGNATED ACTIVITY COMPANY SMURFIT KAPPA HOLDINGS ITALIA S.P.A.
  SMURFIT KAPPA ITALIA S.P.A.
  CORRUGADOS DE BAJA CALIFORNIA, S. DE R.L. DE C.V.
  GRUPO SMURFIT MEXICO, S.A. DE C.V.
  SMURFIT CARTON Y PAPEL DE MEXICO, S.A. DE C.V.
  TENEDORA SMURFIT, S.A. DE C.V. PACKAGING INVESTMENTS
  NETHERLANDS (PIN) B.V. PACKAGING INVESTMENTS HOLDINGS (PIH) B.V.
  SMURFIT CORRUGATED B.V.
  SMURFIT HOLDINGS B.V.
  SMURFIT INTERNATIONAL B.V. SMURFIT INVESTMENTS B.V.
  SMURFIT KAPPA EUROPE B.V. SMURFIT KAPPA CORRUGATED BENELUX B.V.
  SMURFIT KAPPA TECHNICAL SERVICES B.V.
  SMURFIT KAPPA MNL GOLFKARTON B.V.
  SMURFIT KAPPA FINANCE B.V.
  SMURFIT KAPPA PAPER SERVICES B.V. SMURFIT KAPPA NEDERLAND B.V. SMURFIT KAPPA ELCORR B.V. SMURFIT KAPPA ROERMOND PAPIER B.V.
  SMURFIT KAPPA TWINCORR B.V. SMURFIT KAPPA VANDRA B.V. SMURFIT KAPPA NORGE AS
  SMURFIT KAPPA IBEROAMERICANA S.A.
  SMURFIT KAPPA NERVIÓN, S.A.

 

[Signature Page to the Indenture]

 

 

 

 

  SMURFIT KAPPA ESPANA, S.A. PLÁSTICOS VICENT, S.L.
  SMURFIT KAPPA PACKAGING, S.L. SMURFIT KAPPA TOTANA, S.L. SMURFIT KAPPA KRAFTLINER PITEÅ AB
  SMURFIT KAPPA PACKAGING SWEDEN AB
  SMURFIT KAPPA SVERIGE AB
  SMURFIT KAPPA SVERIGE HOLDING AB

 

  By: /s/ Michael O’Riordan
    Name: Michael O’Riordan
    Title: Authorized Attorney

 

[Signature Page to the Indenture]

 

 

 

 

 Deutsche TrustEE Company LIMITED, as Trustee
   
  By: /s/ David Contino
    Name: David Contino
    Title: Associate Director
     
  By: /s/ Kieran Odedra
    Name: Kieran Odedra
    Title: Associate Director

 

[Signature Page to the Indenture]

 

 

 

 

Deutsche BANK AG, London Branch, as Principal Paying Agent

 
  By: /s/ David Contino
    Name: David Contino
    Title: Director
     
  By: /s/ Kieran Odedra
    Name: Kieran Odedra
    Title: Vice President

 

[Signature Page to the Indenture]

 

 

 

 

  Deutsche BANK LUXEMBOURG S.A., as Transfer Agent and Registrar
   
  By: /s/ David Contino
    Name: David Contino
    Title: Attorney
     
  By: /s/ Kieran Odedra
    Name: Kieran Odedra
    Title: Attorney

 

[Signature Page to the Indenture]

 

 

 

 

SCHEDULE A
SUBSIDIARY GUARANTORS

 

Name Jurisdiction Registration Number
 (or equivalent, if any)
Smurfit Kappa Cartomills SA (previously Cartomills SPRL) Belgium 0448.776.735
Smurfit Kappa Turnhout NV (previously Kappa Turnhout NV) Belgium 0437.837.016
Fibras Limited Bermuda 12616
S.I. Holdings Limited Bermuda 11114
Smurfit Canada Holdings Limited Canada New Brunswick Corporation 507606
Smurfit Kappa Czech s.r.o. (previously Kappa Packaging Czech, s.r.o.) Czech Republic 25105582
Kappa Packaging Danmark Holding ApS Denmark 29 17 75 62
Smurfit Kappa Danmark A/S (previously Kappa Packaging Danmark A/S) Denmark 81 87 66 14
Cundell Group Holdings Limited England 02340016
Smurfit Kappa Packaging UK Limited (previously Kappa Packaging UK Limited) England 03566845
Smurfit Corrugated Holdings England 01763645
Smurfit Corrugated UK Limited England 00700242
Smurfit Kappa Investments UK Ltd England 02014441
Smurfit Kappa UK Ltd England 01017013
Smurfit Ward Limited England 02891814
Smurfit Kappa Participations SAS France 437 631 138 RCS Créteil
Smurfit Kappa Cellulose du Pin SAS France 572 142 198 RCS Bordeaux
Smurfit Kappa Wrexen Beteiligungs GmbH Germany Commercial Register of local court of Korbach, Germany No. HRB 1740
Smurfit Kappa Wrexen Paper & Board GmbH Germany Commercial Register of local court of Korbach, Germany, No. HRB 1612
Smurfit Kappa Deutschland GmbH Germany Commercial Register of local court of Hamburg, Germany, No. HRB 90813
Smurfit Kappa GmbH Germany Commercial Register of local court of Hamburg, Germany, No. HRB 82102
Smurfit Kappa Grundstücks- Verwaltungsgesellschaft Europa Carton mbH   Germany Commercial Register of local court of Hamburg, Germany No. HRB 9823

 

A-1

 

 

Smurfit Kappa Herzberger Grundstücks GmbH   Germany Commercial Register of local court of Göttingen, Germany, No. HRB 120478
Smurfit Kappa Herzberger Wellpappe GmbH   Germany Commercial Register of local court of Göttingen, Germany, No. HRB 120286
Smurfit Kappa Leasing GmbH Germany Commercial Register of local court of Hamburg, Germany No. HRB 14941
  Smurfit Kappa Packaging GmbH   Germany Commercial Register of local court of Hamburg, Germany, No. HRB 111621
Smurfit Kappa Papierverwaltungsgesellschaft Wrexen mbH Germany Commercial Register of local court of Korbach, Germany, No. HRB 1010
Smurfit Kappa Recycling GmbH Germany Commercial Register of local court of Hamburg,  Germany No. HRB 8368
Smurfit Kappa Wellpappenwerk Schneverdingen GmbH   Germany Commercial Register of local court of Lüneburg, Germany No. HRB 101891
Smurfit Kappa Wellpappenwerk Waren GmbH Germany Commercial Register of local court of Neubrandenburg, No. HRB 304
Smurfit Kappa Zülpich Papier GmbH Germany Commercial Register of local court of Bonn, Germany, No. HRB 11173
Smurfit Kappa Zülpich Papiermaschine GmbH Germany Commercial Register of local court of Bonn, Germany, No. HRB 11722
Gillridge Holdings Limited Gibraltar Incorporation, No. 34838
Sandlee Investments Limited Gibraltar Incorporation, No. 34837
Wilshaw Investments Limited Gibraltar Incorporation, No. 27619
Belgray Holdings Unlimited Company (previously Belgray Holdings) Ireland 55866
Brenchley Limited (previously Cellogas Eireann Limited and Irish Carton Printers Limited)   Ireland   8628
Claystoke Designated Activity Company (previously Claystoke Limited and Claystoke Investments Limited)   Ireland   325480
Damous Limited Ireland 181223
Gorda Limited Ireland 85693
Iona Print Limited Ireland 39529
Jefferson Smurfit & Sons, Limited Ireland 7345
Margrave Investments Limited Ireland 363510

 

A-2

 

 

Smurfit Kappa Leasing Unlimited Company (previously Smurfit Kappa Leasing, Smurfit Capital Leasing, Packaging International Leasing, Lacebridge and Lacebridge Limited)     Ireland     224165
Smurfit Kappa Treasury Unlimited Company (previously Smurfit Kappa Treasury, Smurfit Capital and Packaging International Finance)   Ireland   177324
Smurfit Kappa Treasury Funding Designated Activity Company (previously Smurfit Kappa Treasury Funding Limited, Smurfit Capital Funding Limited and Smurfit Capital Funding Public Limited Company)     Ireland     239631
Smurfit International Designated Activity Company (previously Smurfit International Limited)   Ireland   45909
Smurfit Investments (Ireland) Limited Ireland 32153
Smurfit Kappa Ireland Limited (previously Smurfit Ireland Limited, Temple Properties Limited, The Temple Press Limited, Ernest Manico, Limited and T.P. Properties Limited)     Ireland     2263
Smurfit Kappa News Press Limited (previously Smurfit News Press Limited and Montshore Limited)   Ireland   319020
Smurfit Kappa Packaging Limited (previously Smurfit Packaging Corporation Limited, Jefferson Smurfit Group Limited, Jefferson Smurfit Group Public Limited Company, Jefferson Smurfit & Sons, Limited and James Magee & Sons, Limited)     Ireland     8610
Smurfit Kappa Services Limited (previously Smurfit Services Limited and Tumba Limited)   Ireland   88814
Smurfit Kappa Irish Paper Sacks Limited (previously Smurfit Irish Paper Sacks Limited)   Ireland   364335
Smurfit Kappa Italia S.p.A. Italy 07034140157
Smurfit Kappa Holdings Italia S.p.A. Italy 01912140066
Corrugados de Baja California, S. de R.L. de C.V. Mexico 28082*2

 

A-3

 

 

Grupo Smurfit México, S.A. de C.V. Mexico 25056
Smurfit Cartón y Papel de México, S.A. de C.V. Mexico 626
Tenedora Smurfit, S.A. de C.V. Mexico 20090*7
Packaging Investments Holdings (PIH) B.V. Netherlands 33210609
Packaging Investments Netherlands (PIN) B.V. Netherlands 33195617
Smurfit Corrugated B.V. Netherlands 33152690
Smurfit Holdings B.V. Netherlands 33175753
Smurfit Investments B.V. Netherlands 33175365
Smurfit International B.V. Netherlands 33149443
Smurfit Kappa Europe B.V. (previously Smurfit Kappa B.V.) Netherlands 33302227
Smurfit Kappa Corrugated Benelux B.V. (previously CB Nederland B.V.) Netherlands 32062689
Smurfit Kappa Technical Services B.V. (previously Corrugated Europe B.V.) Netherlands 14628279
Smurfit Kappa ELCORR B.V. (previously Smurfit Kappa Oudenbosch Golfkarton B.V.)   Netherlands   20045250
Smurfit Kappa Finance B.V. (previously JSG Finance B.V.) Netherlands 34192622
Smurfit Kappa MNL Golfkarton B.V. (previously Smurfit Kappa De Zeeuw Golfkarton B.V.)   Netherlands   08029414
Smurfit Kappa Nederland B.V. (previously Kappa Packaging Nederland B.V.) Netherlands 14628280
Smurfit Kappa Paper Services B.V. (previously Kappa Containerboard B.V.) Netherlands 32065886
Smurfit Kappa Roermond Papier B.V. (previously Kappa Roermond Papier B.V.) Netherlands 13027128
Smurfit Kappa TWINCORR B.V. (previously Kappa TWINCORR B.V.) Netherlands 04029267
Smurfit Kappa Vandra B.V. (previously Kappa Vandra Golfkarton B.V.) Netherlands 20000623
Smurfit Kappa Norge AS (previously Smurfit Sunland-Eker AS) Norway 956 786 649

 

A-4

 

 

Smurfit Kappa Iberoamericana S.A. (previously Kappa Iberoamericana S.A.)   Spain Commercial Registry of Alicante, at Volume 1,361, Sheet 37, Page A-9,447, holder of the Spanish Tax Identification Number A-28112001
Smurfit Kappa Nervión S.A.   Spain Commercial Registry of Vizcaya, at Volume 1,898, Sheet 171, Page BI-171, holder of the Spanish Tax Identification Number A-48019244
Smurfit Kappa España, S.A. (previously Smurfit España S.A.)   Spain Commercial Registry of Madrid, at Volume 27,054, Sheet 222, Page M-40,989, holder of the Spanish Tax Identification Number A-78948007
Plásticos Vicent, S.L.   Spain Commercial Registry of Alicante, at Volume 1,359, Sheet 192, Page A-9415, holder of the Spanish Tax Identification Number B-03307162
Smurfit Kappa Packaging, S.L. (previously Kappa Packaging España S.L.)   Spain Commercial Registry of Alicante, at Volume 3,384, Sheet 54, Page A-64246, holder of the Spanish Tax Identification Number B-97098875
Smurfit Kappa Totana, S.L. (previously Kappa Iberoamericana Totana S.L.)   Spain Commercial Registry of Murcia, at Volume 2,045, Sheet 68, Page MU-50279, holder of the Spanish Tax Identification Number B-53720983
Smurfit Kappa Kraftliner Piteå AB Sweden 556040-5960
Smurfit Kappa Packaging Sweden AB Sweden 556596-1348
Smurfit Kappa Sverige Holding AB Sweden 556117-7329
Smurfit Kappa Sverige AB Sweden 556037-6898
Smurfit Kappa Holdings US Inc. United States (Delaware) 5215279
Smurfit Kappa North America LLC (previously Smurfit Kappa Orange County LLC) United States (Delaware)   4570347
CSI Texas Holdings, Inc. United States (Texas) 22365600
OCC Holdings, Inc. United States (California) C3155179
OCC Group, LLC United States (California) 200831710011

 

A-5

 

 

EXHIBIT A
TO THE INDENTURE

 

[FORM OF FACE OF GLOBAL NOTE]

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Global Securities Legend]

 

UNLESS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V. (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A. (“CLEARSTREAM”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF EUROCLEAR OR CLEARSTREAM OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

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THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

A-2

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

A-3

 

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY

 

2.875% SENIOR NOTE DUE 2026

 

Common Code:                      

 

ISIN:                      

 

No.           

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay €                      to                      or registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on January 15, 2026.

 

Interest Payment Dates: January 15 and July 15, commencing January 15, 2019. Record Dates: January 1 and July 1.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

A-4

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY
   
  By:  
  Name:
  Title:
   
  By:                     
  Name:
  Title:

 

This is one of the Notes referred to in the within-mentioned Indenture:  
   
Deutsche Bank Luxembourg S.A., as Authenticating Agent for  
   
DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee  
   
By:                            
Name:   
Title:  

 

Dated:                                 

 

A-5

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY

 

2.875% SENIOR NOTE DUE 2026

 

1.             Interest.     SMURFIT     KAPPA     ACQUISITIONS     UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the Notes will be payable semi-annually in arrears on January 15 and July 15 in each year, commencing on January 15, 2019. The Issuer will make each interest payment to the Holders of record on the immediately preceding January 1 and July 1. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the Notes will accrue at the rate of 2.875% per annum on the aggregate nominal amount of the Notes outstanding. Interest on the Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

The Issuer shall pay interest on overdue principal and on overdue installments of interest (without regard to any applicable grace periods) and on any Additional Amounts from time to time on demand at the rate borne by the Notes plus 1.0% per annum to the extent lawful. Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.             Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

A-6

 

 

(1)            withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or beneficial owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or beneficial owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

(2)           any Taxes that would not have been imposed if the Holder or beneficial owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or beneficial owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)           except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)           any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)           any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)           any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

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(7)           a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

(8)           any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(9)           any combination of clauses (1) through (8) above.

 

Such Additional Amounts will also not be payable where, had the beneficial owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (9) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.             Method of Payment. The Issuer shall pay interest (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. Immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.             Paying Agent and Registrar. Initially, Deutsche Bank AG, London Branch, will act as Principal Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or transfer agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.             Indenture. The Issuer issued the Notes under an Indenture, dated as of June 28, 2018 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 2.875% Senior Notes due 2026 (the “Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

A-8

 

 

6.             Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.             Optional Redemption. Except as set forth below or under Paragraph 8 and 10, none of the Notes will be redeemable at the Issuer’s option prior to October 15, 2025.

 

At any time prior to October 15, 2025, the Issuer may redeem the Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such Note on October 15, 2025, plus (ii) all required interest payments due on such Note through October 15, 2025 (excluding accrued but unpaid interest to the date of redemption) computed using a discount rate equal to the Bund Rate as of such date of redemption plus 50 basis points calculated by the Issuer, plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

On or after October 15, 2025, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

If and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the Notes that will remain outstanding following such redemption.

 

A-9

 

 

8.             Special Tax Redemption. The Issuer may, at its option, redeem the Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise, (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the Notes would be, required to pay Additional Amounts, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such Notes were then due. Prior to the publication or mailing of any notice of redemption of Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the Notes.

 

9.             Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.           Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

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If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the date of redemption.

 

11.[Intentionally omitted]

 

12.           Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture, the Priority Agreement and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.           Acceptance of Terms and Conditions. The Indenture provides that each Holder, by accepting a Note, consents and agrees to the terms and conditions of the Priority Agreement and acknowledges that, upon written notice by the Parent to the Trustee, the Parent is permitted to terminate the Priority Agreement as to itself, the Issuer and all of the Guarantors in its sole discretion and without any action on the part of the Trustee or the Holders, at any time after which the holders of any of the Existing Senior Notes are no longer entitled to the benefits of, or otherwise subject to the terms or conditions of, the Priority Agreement.

 

14.[Intentionally omitted]

 

15.           Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar and the Paying Agent and transfer agents may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

16.           Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

17.           Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

18.           Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

A-11

 

 

19.           Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding.

 

20.           Restrictive Covenants. The Indenture imposes certain covenants that, among other things, limit the ability of the Issuer and its Subsidiaries to incur additional Indebtedness secured by a Lien, limit the ability of the Issuer’s Subsidiaries to guarantee the Existing Senior Notes or any other Public Indebtedness without guaranteeing the Notes and limit the ability of the Issuer to enter into and consummate certain mergers and consolidations or sales of all or substantially all of its assets. The limitations are subject to a number of important qualifications and exceptions. The Issuer must annually report to the Trustee on compliance with such limitations.

 

21.           Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.           Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

23.           Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.           No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer, as such, shall have any liability for any obligations of the Issuer under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

A-12

 

 

25.           Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.           Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.           ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.           Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

A-13

 

 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL AMOUNT

 

The initial principal amount at maturity of this Note shall be €      .      The following decreases/increases in the principal amount at maturity of this Note have been made:

 

Date of
Decrease/
Increase		 Decrease in 
Principal 
Amount at
Maturity		  Increase in
Principal 
Amount at
Maturity		  Total Principal
Amount at
Maturity 
Following such 
Decrease/
Increase		   Notation 
Made by 
or on
Behalf of
Trustee		  
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 

 

A-14

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date:                          

 

Your Signature:                                             

(Sign exactly as your name appears on the other side of this Note)

 

A-15

 

 

EXHIBIT B

TO THE INDENTURE

 

[FORM OF FACE OF DEFINITIVE NOTE]

 

THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

[Rule 144A Securities Legend]

 

B-1

 

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-2

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

[Definitive Securities Legend]

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER SHALL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

B-3

 

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY

 

2.875% SENIOR NOTE DUE 2026

 

Common Code:                          

 

ISIN:                          

 

No.             €                          

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay €                      to                      or registered assigns upon surrender hereof the principal sum of                     Euros (€              ), on January 15, 2026.

 

Interest Payment Dates: January 15 and July 15, commencing January 15, 2019.

 

Record Dates: January 1 and July 1.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

B-4

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY
   
  By:  
  Name:
  Title:
   
  By:                            
  Name:
  Title:

 

This is one of the Notes referred to in the within-mentioned Indenture:  
   
Deutsche Bank Luxembourg S.A., as Authenticating Agent for  
   
DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee  
   
By:                              
Name:  
Title:  

 

Dated:                                                

 

B-5

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY

 

2.875% SENIOR NOTE DUE 2026

 

1.             Interest.          SMURFIT      KAPPA      ACQUISITIONS     UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the Notes will be payable semi-annually in arrears on each January 15 and July 15 in each year, commencing on January 15, 2019. The Issuer will make each interest payment to the Holders of record on the immediately preceding January 1 and July 1. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the Notes will accrue at the rate of 2.875% per annum on the aggregate nominal amount of the Notes outstanding. Interest accruing on all Notes then outstanding will be payable in cash. Interest on the Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

The Issuer shall pay interest on overdue principal and on overdue installments of interest (without regard to any applicable grace periods) and on any Additional Amounts from time to time on demand at the rate borne by the Notes plus 1.0% per annum to the extent lawful. Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.             Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on -account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or beneficial owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or beneficial owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

B-6

 

 

(2)           any Taxes that would not have been imposed if the Holder or beneficial owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or beneficial owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)           except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)           any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)           any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)           any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

B-7

 

 

(7)           a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

(8)            any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(9)           any combination of clauses (1) through (8) above.

 

Such Additional Amounts will also not be payable where, had the beneficial owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (9) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.             Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are the registered Holders at the close of business on the Record Date immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. With respect to payments in euros, if (i) a Holder has given wire transfer instructions to the Issuer and the Paying Agent in writing, (ii) the Paying Agent has received such written wire transfer instruction at least 15 days prior to the date of the relevant payment and (iii) for so long as the Notes are listed on Euronext Dublin, such holder has also provided such notice to the Paying Agent, then the Issuer will pay all interest, premium and Additional Amounts, if any, on that Holder’s Notes in accordance with those instructions by wire transfer of same day funds to the Paying Agent who in turn will wire such funds to the Holder hereof or to such other Person as the Holder hereof may in writing to the Paying Agent direct. In all other cases, the Issuer may elect to make payments of interest, premium and Additional Amounts, if any, on a Holder’s Notes by check mailed to the Holders at their addresses set forth in the register of Holders. Payments on Notes will be made through the office or agency of the Paying Agent and Registrar for the Notes unless the Issuer elects to make interest payments by check as previously described. If payments are made through the Paying Agent, immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.             Paying Agent and Registrar. Initially, Deutsche Bank AG, London Branch, will act as Principal Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or transfer agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

B-8

 

 

5.             Indenture. The Issuer issued the Notes under an Indenture, dated as of June 28, 2018 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 2.875% Senior Notes due 2026 (the “Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

6.             Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.             Optional Redemption. Except as set forth below or under Paragraph 8 and 10, none of the Notes will be redeemable at the Issuer’s option prior to October 15, 2025.

 

At any time prior to October 15, 2025, the Issuer may redeem the Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such Note on October 15, 2025, plus (ii) all required interest payments due on such Note through October 15, 2025 (excluding accrued but unpaid interest to the date of redemption) computed using a discount rate equal to the Bund Rate as of such date of redemption plus 50 basis points calculated by the Issuer, plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

On or after October 15, 2025, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

If and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the Notes that will remain outstanding following such redemption.

 

B-9

 

 

8.             Special Tax Redemption. The Issuer may, at its option, redeem the Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise, (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the Notes would be, required to pay Additional Amounts, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such Notes were then due. Prior to the publication or mailing of any notice of redemption of Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the Notes.

 

9.            Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

B-10

 

 

10.           Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest, and Additional Amounts, if any, on the relevant interest payment date). Holders of Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the date of redemption.

 

11.[Intentionally omitted]

 

12.           Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture, the Priority Agreement and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.           Acceptance of Terms and Conditions. The Indenture provides that each Holder, by accepting a Note, consents and agrees to the terms and conditions of the Priority Agreement and acknowledges that, upon written notice by the Parent to the Trustee, the Parent is permitted to terminate the Priority Agreement as to itself, the Issuer and all of the Guarantors in its sole discretion and without any action on the part of the Trustee or the Holders, at any time after which the holders of any of the Existing Senior Notes are no longer entitled to the benefits of, or otherwise subject to the terms or conditions of, the Priority Agreement.

 

14.[Intentionally omitted]

 

15.           Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar and the Paying Agent and transfer agents may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

B-11

 

 

16.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

17.           Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

18.           Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

19.           Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding.

 

20.           Restrictive Covenants. The Indenture imposes certain covenants that, among other things, limit the ability of the Issuer and its Subsidiaries to incur additional Indebtedness secured by a Lien, limit the ability of the Issuer’s Subsidiaries to guarantee the Existing Senior Notes or any other Public Indebtedness without guaranteeing the Notes and limit the ability of the Issuer to enter into and consummate certain mergers and consolidations or sales of all or substantially all of its assets. The limitations are subject to a number of important qualifications and exceptions. The Issuer must annually report to the Trustee on compliance with such limitations.

 

21.           Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.           Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

B-12

 

 

23.           Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.           No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer, as such, shall have any liability for any obligations of the Issuer under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

25.           Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.           Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.           ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.           Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

B-13

 

 

 

ASSIGNMENT FORM

 

To assign this Note fill in the form below:

 

I or we assign and transfer this Note to

 

(Print or type assignee’s name, address and zip code)

 

(Insert assignee’s social security or tax I.D. No.)

 

and irrevocably appoint                               agent to transfer this Note on the books of the Issuer.

The agent may substitute another to act for him.

 

  

 

Date:   Your Signature:    

 

   

Sign exactly as your name appears on the other side of this Note.

 

B-14

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date:                            

 

Your Signature:                                 

(Sign exactly as your name appears on the other side of this Note)

 

B-15

 

 

EXHIBIT C
TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE

(TRANSFERS PURSUANT TO SECTION 2.7(B) OF THE INDENTURE)

 

Smurfit Kappa Acquisitions Unlimited Company

c/o Deutsche Trustee Company Limited, as Trustee

Winchester House

1 Great Winchester Street

London EC2N 2DB

United Kingdom

Attention: Trust & Security Services

 

Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar

2, boulevard Konrad Adenauer

L-1115 Luxembourg

 

RE:2.875% Senior Notes due 2026 (the “Notes”) of Smurfit Kappa Acquisitions Unlimited Company (the “Issuer”)

 

Reference is hereby made to the Indenture, dated as of June 28, 2018 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.

 

This letter relates to €                    (being any integral multiple of €1,000 in excess of €100,000) principal amount of Notes which are evidenced by Rule 144A Global Notes (ISIN                          ; Common Code      ) and held by you on behalf of the Common Depositary who in turn is holding an interest therein on behalf of the undersigned (the “Transferor”). The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the Rule 144A Global Note be transferred or exchanged for an interest in the Regulation S Global Note (ISIN XS1849518276; Common Code 184951827) in the form of an equal aggregate principal amount of Notes. If this is a partial transfer, a minimum amount of €100,000 and any integral multiple of €1,000 in excess thereof of the Rule 144A Global Note will remain outstanding.

 

C-1

 

 

In connection with such request and in respect of such Notes, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S under the Securities Act, and accordingly the Transferor further certifies that:

 

(A)(1) the offer of the Notes was not made to a person in the United States;

 

(2) either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on our behalf knows that the transaction was prearranged with a buyer in the United States,

 

(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;

 

(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

(5) if the transfer is made prior to the expiration of 40 days after the later of the Issue Date and the last date on which the Issuer or any of its affiliates was the owner of such Notes (and the Guarantees) (or any predecessor thereto), the transfer was not made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser of the Notes).

 

OR

 

(B)such transfer is being made in accordance with Rule 144 under the Securities Act.

 

C-2

 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer and the Initial Purchasers.

 

Dated:                               

 

  [Name of Transferor]
   
  By:                
  Name:
  Title:
  Telephone No.:

 

Please print name and address (including zip code number)    
     
     

 

C-3

 

 

EXHIBIT D

TO THE INDENTURE

 

FORM OF SUPPLEMENTAL INDENTURE

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of [date], among (i) [subsidiary guarantor] (the “New Guarantor”), a [type of company] organized under the laws of [jurisdiction of organization] with its registered office at [registered office] and a Subsidiary, (ii) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (iii) Deutsche Trustee Company Limited, as Trustee, (iv) Deutsche Bank AG, London Branch, as Principal Paying Agent and (v) Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar.

 

WITNESSETH:

 

WHEREAS the Issuer has heretofore executed an Indenture dated as of June 28, 2018 (the “Indenture”), providing for the issuance of the Notes by the Issuer;

 

WHEREAS Section 4.8 of the Indenture provides that under certain circumstances the Issuer is required to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture providing for a Guarantee of payment of the Notes by the New Guarantor on the terms and conditions set forth herein; and WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.             Agreement to Guarantee. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.             Agreement to be Bound. The New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

3.             Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

D-1

 

 

4.             Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.             Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.             Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

7.             Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.             Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

D-2

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

  [NEW GUARANTOR]
   
  By                   
  Name:
  Title:

 

SIGNED and DELIVERED as a deed    
     
for and on behalf of    
     
SMURFIT KAPPA TREASURY    
UNLIMITED COMPANY    
     
by its duly authorised attorney    
     
[                          ]    
     
in the presence of [                          ]    
     
    Signature
     
     
Witness (Signature)    
     
     
Print Address    
     
     
Witness Occupation    

 

D-3

 

 

  DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee
   
  By:  
    Name:
    Title:
   
  By:                              
    Name:
    Title:

 

D-4

 

 

EXHIBIT E

TO THE INDENTURE

 

LIMITATIONS ON GUARANTEES

 

Limitations for Belgian Guarantors

 

The obligations and liabilities of a Guarantor organized in Belgium (a “Belgian Guarantor”) under the guarantee clause of the Indenture, shall be limited, at any time, to a maximum aggregate amount equal to the greater of:

 

(a)an amount equal to 80% of such Belgian Guarantor’s net assets (as determined in accordance with articles 320 (for SPRL/BVBA) and 617 (for SA/NV) of the Belgian Companies Code and accounting principles generally accepted in Belgium, but not taking intragroup debt into account as debts) as shown by its most recent audited annual financial statements on the date on which the relevant demand is made; and

 

(b)the aggregate amount outstanding on the date on which the relevant demand is made of (i) the amounts (including interest thereon, commissions, costs and fees) made available directly or indirectly to such Belgian Guarantor from the proceeds of the Notes, and (ii) the aggregate amount of any intragroup loans or facilities made to it by Smurfit Kappa Group plc or any of its Subsidiaries directly and/or indirectly using all or part of the proceeds of the Notes (whether or not such intragroup loan is retained by the Belgian Guarantor for its own purposes or on-lent to a subsidiary of such Belgian Guarantor).

 

Limitations for Czech Guarantors

 

(a)Notwithstanding any other provision of the Indenture, the guarantee, indemnity, reimbursement, undertakings and other payment obligations and liabilities of Smurfit Kappa Czech s.r.o. under this Indenture, including, without limitation, the obligations and liabilities under or pursuant to Article X of the Indenture, shall not include any obligation and liability which if incurred, directly or indirectly, would result in the violation of financial assistance rules arising from Section 41 and 200 of the Czech Act on Business Corporations (Act no. 90/2012 Coll., as amended) (the “Czech Financial Assistance Rules”). Nothing in this Clause shall be construed and/or interpreted as an obligation of Smurfit Kappa Czech s.r.o. to take the steps to authorise the financial assistance in accordance with Section 200 or 311 of the Czech Act on Business Corporations (Act No. 90/2012 Coll., as amended).

 

(b)The invalidity, either in whole or in part, of the Guarantee provided by Smurfit Kappa Czech s.r.o. pursuant to Article X of the Indenture due to the characterisation of any or all of the guarantees, obligations, liabilities and undertakings of Smurfit Kappa Czech s.r.o. under Article X of the Indenture as guarantees, obligations, liabilities and undertakings violating the Czech Financial Assistance Rules, shall not constitute an Event of Default for the purposes of Article VI of the Indenture.

 

(c)Notwithstanding any other provision of the Indenture, the guarantee, indemnity, reimbursement and other payments, undertakings, obligations and liabilities of Smurfit

 

E-1

 

 

Kappa Czech s.r.o. under this Indenture, including, without limitation, the obligations and liabilities under or pursuant to Article X of the Indenture, shall be further limited to an amount equal to the “Czech Limitation Amount”, being:

 

Czech Limitation Amount = (A – O) x 0.9 where:

 

“A” means the net book value of all assets of Smurfit Kappa Czech s.r.o. recorded in its latest annual unconsolidated financial statements available to the Trustee or, if they are more up-to-date and supplied to the Agent within 15 Business Days of its request, and if the Trustee has no reason to doubt the accuracy thereof, its latest interim unconsolidated financial statements;

 

“O” means all liabilities of Smurfit Kappa Czech s.r.o. recorded in its latest annual unconsolidated financial statements available to the Trustee or, if they are more up-to- date and supplied to the Agent within 15 Business Days of its request and if the Trustee has no reason to doubt the accuracy thereto, its latest interim unconsolidated financial statements. For the avoidance of doubt, any identical obligations of Smurfit Kappa Czech s.r.o. mentioned in the previous sentence will only be included in the “O” once.

 

The term “liabilities” shall have the meaning attached to it under the accounting standards applicable to Smurfit Kappa Czech s.r.o., but, notwithstanding the foregoing, shall at all times exclude (aa) equity capital (vlastní kapitál) and (bb) the amount of all obligations that are guaranteed by Smurfit Kappa Czech s.r.o. under the obligations and liabilities under or pursuant to Article X of the Indenture.

 

The term “net book value” used for the purpose of the calculation of the Czech Limitation Amount means the book value reduced by corrections and provisions (opravné položky a oprávky (korekce)) as set out in decree no. 500/2002 Coll., as amended (the “Decree”), implementing Act No. 563/1991 Coll., on Accountancy, as amended or in any other legislation which may supersede the Decree in the future.

 

To the extent Smurfit Kappa Czech s.r.o. does not have sufficient cash or assets to be liquidated easily to make a payment on the guarantee, indemnity, reimbursement and other payments, undertakings, obligations and liabilities of Smurfit Kappa Czech s.r.o. under this Indenture, including, without limitation, the obligations and liabilities under or pursuant to Article X of the Indenture, each holder of the Notes and the Trustee undertake to duly consider this situation and the possibility of a payment, including payment in instalments in good faith.

 

E-2

 

 

Limitations for Danish Guarantors

 

In relation to any Guarantee granted, any security given or any indemnity or reimbursement undertaken under or in connection with the Indenture by a Guarantor which is incorporated in Denmark, its obligations under such guarantees, security, indemnity or reimbursement under the Indenture shall:

 

(1)           be limited if and to the extent required to comply with Danish statutory provisions on unlawful financial assistance including, without limitation, (i) Section 206(1) (as modified by Section 206(2)) of Consolidated Act No. 1089 of 14 September 2015 on public and private limited liability companies, as amended and supplemented from time to time (the “Danish Companies Act”) and (ii) Section 210 (as modified by Sections 211 and 212) of the Danish Companies Act and, accordingly, shall not include, and shall not be or be construed as, any indemnity, guarantee or security in respect of:

 

(a)any obligations (“Acquisition Debt”) incurred or undertaken in relation to the financing of a direct acquisition of shares issued or to become issued by such Guarantor or by a direct or indirect Qualifying Parent Company of such Guarantor; nor

 

(b)any obligations other than Acquisition Debt of a Non Qualifying Shareholder.

 

(2)           at any time be limited to a maximum amount equivalent to the net equity of the Guarantor at that time.

 

For the purpose of this clause:

 

(i)“Qualifying Parent Company” means a parent company which is incorporated under the laws of any country covered by Executive Order No. 275 of 25 March 2010 on loans etc. to foreign parent companies, as amended and supplemented from time to time; and

 

(ii)“Non Qualifying Shareholder” means any shareholder other than a Qualifying Parent Company.

 

Limitations on French Guarantees

 

(a)           The obligations and liabilities of any Guarantor incorporated in France (a “French Guarantor”) under the Notes and this Indenture and in particular under Article X (Guarantees) of this Indenture shall not include any obligation which if incurred would constitute the provision of financial assistance within the meaning of article L. 225-216 of the French Commercial Code in connection with the financing or the refinancing of the direct or indirect acquisition or subscription of the shares of such French Guarantor or would constitute a misuse of corporate assets within the meaning of articles L. 241-3, L. 242-6 or L. 244-1 of the French Commercial Code or any other law or regulations having the same effect, as interpreted by French courts, and/or would constitute an act that is contrary to, or not within, the corporate or group interest (“intérêt social ou du groupe”) of any French Guarantor, and/or which may trigger the criminal liability of any corporate officers (“mandataires sociaux”) of any French Guarantor.

 

(b)           Misuse of corporate assets. The obligations and liabilities of each French Guarantor under Article X (Guarantees) of this Indenture shall be limited, at any time to an amount equal to (i) the aggregate of all amounts made available under the Notes and this Indenture to the Issuer directly or indirectly onlent from time to time to such French Guarantor and its subsidiaries under intercompany loan arrangements until the date a payment (for the purpose of this clause, the “Relevant Payment”) is to be made by such French Guarantor under Article X (Guarantees) of this Indenture minus (ii) the aggregate of all amounts paid by such French Guarantor under this Agreement until the date of the Relevant Payment minus (iii) the aggregate of all amounts repaid by such French Guarantor and its subsidiaries under such intercompany loan arrangements until the date of the Relevant Payment.

 

E-3

 

 

(c)           This Agreement does not purport to document or govern the recourse rights which the French Guarantors may have against each other (whether by way of recours subrogatoire, recours personnel or otherwise) as a result of any payment made by any of them under this Agreement, it being understood that the terms and conditions of such recourse rights will be determined by the French Guarantors in a separate agreement or otherwise.

 

Limitations for German Guarantors

 

The right to enforce any guarantee, indemnity or liability obligation under or in connection with this Indenture of any Guarantor incorporated in the form of a limited liability company (GmbH) or a limited partnership (GmbH & Co. KG) in accordance with the laws of the Federal Republic of Germany (a ‟German Guarantor”) shall, to the extent that such obligation pertains to liabilities of an affiliated company (verbundenes Unternehmen) of the relevant German Guarantor within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (other than the relevant German Guarantor's subsidiaries), at all times be limited to an amount equal to (i) in case of the relevant German Guarantor being incorporated in form of a limited liability company, such German Guarantor’s net assets, being its total assets less its liabilities (including liability reserves (Rückstellungen)) less its registered share capital (Stammkapital), and (ii) in case of the relevant German Guarantor being incorporated in form of a limited partnership, such German Guarantor's general partner's net assets, being such general partner's total assets less its liabilities (including liability reserves (Rückstellungen)) less its registered share capital (Stammkapital) (the “Net Assets”) provided that, to the extent legally permitted, for the purposes of the calculation of the Net Assets the following balance sheet items shall be taken into consideration as follows:

 

(a)  the amount of any increase of the registered share capital out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) after the date hereof; and

 

(b)  loans and other contractual liabilities incurred in negligent or wilful violation of the provisions of this Indenture shall be disregarded.

 

In addition, following the enforcement of any guarantee, indemnity or liability obligation of a German Guarantor under or in connection with this Indenture, the relevant German Guarantor shall realise, to the extent legally permitted and in respect of the relevant German Guarantor's (or its respective general partner's) business commercially justifiable, in a situation where such German Guarantor (or in the case of a GmbH & Co. KG, its general partner) does not have sufficient assets to maintain its registered share capital, any and all of its assets that are shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of the assets if such asset is not necessary for the German Guarantor's (or its respective general partner's) business (betriebsnotwendig).

 

None of the above restrictions on enforcement shall apply (i) if the enforcement relates to its own obligations of the relevant German Guarantor or (ii) if and to the extent that, at the time of enforcement of the guarantee, indemnity or liability obligations, the limitations set out above are not required for any reason (including as a result of a change in the relevant rules of law or their application or construction by the German Federal Supreme Court (Bundesgerichtshof)) to protect the managing directors of the German Guarantor from the risk of personal liability resulting from a violation of the German Guarantor’s obligation to maintain its registered share capital pursuant to sections 30, 43 et seq. of the GmbHG or similar provisions under then applicable laws.

 

E-4

 

 

To the extent that after such a possible change in law or its application the Net Assets will have to be calculated as at the date of the entering into the guarantee in the Indenture, the limitation provisions shall be applied accordingly for that point in time.

 

Limitations for Gibraltar Guarantors

 

Any Guarantee granted under the Indenture by a Guarantor incorporated in Gibraltar does not apply to any liability to the extent that it would constitute unlawful financial assistance within the meaning of section 100 of the Companies Act 2014 of Gibraltar or (i) comprise a void transaction under the Gibraltar Insolvency Act 2011 or the Gibraltar Companies Act 2014; (ii) comprise a voidable transaction per Part 9 of the Gibraltar Insolvency Act 2011; or (iii) cause any breach whatsoever under the Gibraltar Insolvency Act 2011.

 

Limitations for Italian Guarantors

 

The obligations under or in connection with this Indenture of Smurfit Kappa Holdings Italia S.p.A. and Smurfit Kappa Italia S.p.A. (each of them an “Italian Guarantor”) are limited as follows:

 

The obligations of each of them shall at any time:

 

(a)           for the purposes of Article 1938 of the Italian Civil Code, not exceed, in any case, the overall amount of €138,000,000 (or the equivalent in any other currency);

 

(b)           in relation to the guarantee obligations of each of the Italian Guarantors be limited to the aggregate principal amount of any Intercompany Debt (if any) advanced or made available from time to time to that relevant Italian Guarantor, directly or indirectly, by any Obligor (other than, in respect of a Subsidiary of an Italian Guarantor, by such Italian Guarantor or vice versa), provided that such obligations of that relevant Italian Guarantor may not exceed the limit set out in paragraph (a) above.

 

In this clause: "Intercompany Debt" means any loan in any form (including, without limitation, any intercompany loan), documentary credit (including any intercompany documentary credit or other form of financial support) or any other item constituting Financial Indebtedness as defined in the Facilities Agreement dated July 16, 2013 for Smurfit Kappa Corporation Designated Activity Company, arranged by Citigroup Global Markets Limited, Crédit Agricole Corporate and Investment Bank, Danske Bank a/s, HSBC Bank plc, J.P. Morgan Limited and Ulster Bank Ireland Limited with the Royal Bank of Scotland plc as Agent.

 

E-5

 

 

Limitations for New Brunswick, Canadian Guarantors

 

In relation to any Guarantee granted, any security given or any indemnity or reimbursement undertaken under or in connection with this Agreement by a Guarantor which is incorporated in New Brunswick, Canada, its obligations under such guarantees, security, indemnity or reimbursement under this Agreement shall be limited if and to the extent required to comply with New Brunswick, Canadian statutory provisions on unlawful financial assistance including, without limitation, Section 43 of the Business Corporations Act (New Brunswick).

 

Limitations for Norwegian Guarantors

 

(a)           Any guarantee, indemnity, obligation and/or liability granted, incurred, undertaken, assumed or otherwise agreed by any Guarantor incorporated in Norway (a “Norwegian Guarantor”) shall be limited to an amount equivalent to the higher of (i) the Distributable Equity on the date of this Indenture and (ii) the Distributable Equity at the time or times that payment is requested from that Norwegian Guarantor, save that the limitations in this paragraph (a) shall not apply to any obligations and liabilities of that Norwegian Guarantor in respect of direct or indirect borrowings under the Notes placed at the disposal of that Norwegian Guarantor by the Issuer by way of a loan or otherwise (other than as share capital), where “Distributable Equity” means the distributable equity of such Norwegian Guarantor calculated in accordance with Section 8-1 of the Norwegian Limited Companies Act.

 

(b)The obligations for Smurfit Kappa Norge AS under this Agreement shall not exceed €600,000,000.

 

(c)           Certain limitations on interest and enforcement fees included in the Norwegian Financial Agreements Act of 25 June 1999 no 46 Sections 72 and 73 may, however unlikely, apply as internationally mandatory rules. If so, the interest and enforcement fees connected with the claim against the principal debtor being recoverable from the Norwegian Guarantor may be reduced compared to the general wording of the guarantee issued by the Norwegian Guarantor.

 

Limitations for Spanish Guarantors

 

Any guarantee, indemnity, obligation and/or liability granted, incurred, undertaken, assumed or otherwise agreed by any Guarantor incorporated in Spain (a “Spanish Guarantor”) shall be limited to the following:

 

(a)           shall not extend to any obligation to the extent that the same would constitute unlawful financial assistance within the meaning of articles 143.2 and 150 of the Spanish law on Share Capital Companies (“Real Decreto Legislativo 1/2010 de 2 de Julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital”); and

 

(b)           if the Spanish Guarantor is incorporated as a limited liability company (“sociedad de responsabilidad limitada”), restrictions contained in Spanish law on Share Capital Companies (“Real Decreto Legislativo 1/2010 de 2 de Julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital”) shall be applicable.

 

E-6

 

 

Each Spanish Guarantor hereby expressly agrees that the scope and provisions of its respective obligations under the Guarantee granted by each of them will not be affected by the fact that any Holder of the Notes and/or the Trustee and/or any Initial Purchaser may vote in favour of: (i) the approval or ratification of a composition agreement ("convenio") as a result of the bankruptcy declaration ("concurso") of a Spanish Guarantor, in accordance with article 135.2 of the Spanish Insolvency Act (“Ley 22/2003, de 9 de julio, Concursal”); or (ii) the approval or execution of a court-sanctioned out-of-court workout (an homologated refinancing agreement (“acuerdo de refinanciación homologado”)) and which may be entered into as a result of a pre-insolvency or insolvency of a Spanish Guarantor (in any case, prior to the declaration of insolvency, whether voluntary or mandatory), under paragraph 9 of the 4th Additional Provision of the Spanish Insolvency Act (“Ley 22/2003, de 9 de julio, Concursal”). Accordingly, each and any of the obligations of a Spanish Guarantor under this Agreement (particularly under the Guarantee) shall remain exactly within the terms stated herein irrespective of whether or not any Holder of the Notes and/or the Trustee and/or any Initial Purchaser votes in favour of the approval or ratification of a composition agreement ("convenio"), or a court-sanctioned out-of-court workout (an homologated refinancing agreement (“acuerdo de refinanciación homologado”)).

 

Limitations for Swedish Guarantors

 

The obligations and liabilities of any Guarantor incorporated in Sweden in its capacity as a Guarantor (each a “Swedish Guarantor”) under Article X of the Indenture shall be limited if (and only if) required by the provision of the Swedish Companies Act (Aktiebolagslagen (2005:551)) (or its equivalent from time to time) regulating (i) unlawful financial assistance and other prohibited loans and guarantees (Chapter 21, Section 1-3 and 5 (or its equivalent from time to time)) and (ii) distribution of assets (Chapter 17, Section 1-3 (or its equivalent from time to time)) and it is understood that the liability of each Swedish Guarantor under Article X of the Indenture only applies to the extent permitted by the above mentioned provisions of the Swedish Companies Act, provided that all steps available to the Swedish Guarantors and their respective shareholder to authorize their obligations under the Indenture have been taken.

 

Limitations for U.S. Guarantors

 

Notwithstanding anything to the contrary contained in the Indenture, no guaranteed obligation by any Guarantor organized or incorporated under the laws of the United States, any State thereof or the District of Columbia (the “U.S. Guarantors”) under Article X of the Indenture will include an obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a (47) of the Commodity Exchange Act if, and to the extent, all or a portion of such guarantee, or the grant by any such U.S. Guarantor of a security interest to secure such swap, is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of any such U.S. Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act.

 

Additional Waivers for Mexican Guarantors

 

Each Guarantor incorporated under the United Mexican States (each a “Mexican Guarantor”) hereby expressly waives the rights and benefits of priority (beneficio de orden), foreclosing first on the assets of the Issuer or any other Guarantor (beneficio de excusión), division (beneficio de división), requesting assurances from any of the Issuer and all other Guarantors (fiadores) and all other rights and benefits provided in articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2839, 2840, 2841 and those rights and benefits provided for in articles 2814, 2815, 2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2827, 2828, 2836, 2840, 2845, 2846, 2848 and 2849 of the Federal Civil Code of the United Mexican States (Código Civil Federal) and similar articles in the Civil Codes of the States of the United Mexican States and the Federal District, which are not reproduced herein since such Mexican Guarantor hereby expressly acknowledges that it knows the contents of each such legal provisions.

 

Each Mexican Guarantor acknowledges that (i) its corporate purpose allows it to grant the guarantee and indemnity provided under this Indenture, and (ii) it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee set forth in this Indenture is knowingly made in contemplation of such benefits.

 

E-7

 

Exhibit 4.4

 

EXECUTION VERSION

 

FIRST SUPPLEMENTAL INDENTURE

 

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of February 4, 2019 among (i) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (ii) Smurfit Kappa Group plc., Smurfit Kappa Corporation Designated Activity Company, Smurfit International B.V., Smurfit Kappa Treasury Unlimited Company, Smurfit Kappa Investments Limited, Smurfit Kappa Holdings Limited, Smurfit Kappa Funding Designated Activity Company and Smurfit Kappa Treasury Funding Designated Activity Company (collectively, the “Guarantors”) and (iii) Deutsche Trustee Company Limited, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS, among others, the Issuer, the Guarantors and the Trustee have heretofore executed and delivered an indenture dated as of June 28, 2018 (the “Indenture”), authorizing the issuance by the Issuer of an unlimited aggregate principal amount of its 2.875% Senior Notes due 2026 (the “Notes”);

 

WHEREAS, the Issuer initially issued, on June 28, 2018, €600.0 million aggregate principal amount of Notes (the “Original Notes”) pursuant to the Indenture;

 

WHEREAS, Section 9.1(10) of the Indenture provides that the Issuer may provide for the issuance of additional Notes (the “Additional Notes”) as permitted by Section 2.2 therein;

 

WHEREAS, the Issuer wishes to issue €400.0 million aggregate principal amount of Additional Notes under the Indenture;

 

WHEREAS, pursuant to Section 10.6 of the Indenture, the Issuer has released the Guarantees of all of the Subsidiary Guarantors (other than Smurfit Kappa Treasury Funding Designated Activity Company, Smurfit Kappa Treasury Unlimited Company and Smurfit International B.V.) by written notice to the Trustee on, and effective as of, January 31, 2019;

 

WHEREAS, Section 10.1(a) of the Indenture provides that each Guarantor shall fully, unconditionally and irrevocably guarantee, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes and the Trustee the full and punctual payment when due of the Guarantee Obligations, and that each Guarantor shall further agree that the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under Article X of the Indenture notwithstanding any extension or renewal of any Guarantee Obligation;

 

WHEREAS, pursuant to Section 9.1 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend and supplement the Indenture, without the consent of any Holder of a Note;

 

WHEREAS, the Issuer has requested and hereby directs that the Trustee join with the Issuer and the Guarantors in the execution of this Supplemental Indenture; and

 

 

 

 

WHEREAS, the Issuer has duly authorized the execution and delivery of this Supplemental Indenture to provide for the issuance of the Additional Notes and to amend certain terms of the Indenture, and all acts and things necessary to make this Supplemental Indenture a valid, binding, and legal obligation of the Issuer and to constitute a valid agreement of the Issuer, in accordance with its terms, have been done and performed.

 

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

 

1.             Additional Notes. As of the date hereof, the Issuer will issue the Additional Notes. The Additional Notes will be issued pursuant to the Indenture and will constitute Additional Notes (as defined in the Indenture) and will be treated as the same series of Notes as the Original Notes for all purposes under the Indenture, including for purposes of waivers, amendments, redemptions and offers to purchase. The Additional Notes shall have the same terms and conditions in all respects as the Original Notes, except for the issue date (which shall be February 4, 2019) and the issue price (which shall be 100.750% of the aggregate principal amount of the Additional Notes, plus accrued and unpaid interest from January 15, 2019). The Additional Notes shall be authenticated on the date hereof. Subject to the foregoing, the Additional Notes shall be substantially in the form of Exhibit A to the Indenture.

 

2.             Aggregate Principal Amount. The aggregate principal amount of Additional Notes issued pursuant to this Supplemental Indenture shall be €400.0 million.

 

3.             Amendments to the Indenture. The Indenture is hereby amended as follows:

 

(a)The definition of “Priority Agreement” in Section 1.1 of the Indenture is hereby deleted and replaced in its entirety with the following:

 

“Priority Agreement” means the Amended and Restated Priority Agreement, dated 28 January 2019, as amended, modified, supplemented or replaced from time to time, among the Parent, certain Subsidiaries of the Parent, the trustees for the Existing Senior Notes and the other parties thereto from time to time.”

 

(b)The table under the heading “Subsidiary Guarantors” in Schedule A to the Indenture is hereby deleted and replaced in its entirety with the following:

 

 

 

 

Name Jurisdiction Registration Number (or equivalent, if any)
Smurfit Kappa Treasury Unlimited Company (previously Smurfit Kappa Treasury, Smurfit Capital and Packaging International Finance) Ireland 177324
Smurfit Kappa Treasury Funding Designated Activity Company (previously Smurfit Kappa Funding Limited and Smurfit Capital Funding Public Limited Company) Ireland 239631
Smurfit International B.V. Netherlands 33149443

 

4.             Ratification of Agreement to Guarantee. Each of the Guarantors hereby ratifies its agreement, jointly and severally with all other Guarantors, to unconditionally and irrevocably guarantee the Guarantee Obligations under the Notes and the Indenture, including for the avoidance of any doubt the Additional Notes to which this Supplemental Indenture relates, on the terms and subject to the conditions and limitations set forth in Article X of the Indenture, and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all obligations and agreements of a Guarantor under the Indenture.

 

5.             Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

6.             Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

7.             Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

8.             Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

9.             Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

  Very truly yours,
   
  ISSUER:
   
  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY
   
  By: /s/ Brian Marshall, Esq.
    Name: Brian Marshall, Esq.
    Title: General Counsel
      Smurfit Kappa Group plc
      Beech Hill
      Clonskeagh
      Dublin 4
      Solicitor Roll number S5106

 

[Signature Page to First Supplemental Indenture]

 

 

 

 

  GUARANTORS:
   
  SMURFIT KAPPA CORPORATION DESIGNATED ACTIVITY COMPANY
   
  By: /s/ Brian Marshall, Esq.
    Name: Brian Marshall, Esq.
    Title: General Counsel
      Smurfit Kappa Group plc
      Beech Hill
      Clonskeagh
      Dublin 4
      Solicitor Roll number S5106

 

[Signature Page to First Supplemental Indenture]

 

 

 

 

  SMURFIT KAPPA GROUP PLC
   
  By: /s/ Brian Marshall, Esq.
    Name: Brian Marshall, Esq.
    Title: General Counsel
      Smurfit Kappa Group plc
      Beech Hill
      Clonskeagh
      Dublin 4
      Solicitor Roll number S5106

 

[Signature Page to First Supplemental Indenture]

 

 

 

 

  SMURFIT INTERNATIONAL B.V.
   
  By: /s/ M.G. O’Riordan
    Name: M.G. O’Riordan
    Title: Authorised Signatory

 

[Signature Page to First Supplemental Indenture]

 

 

 

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
  By: /s/ Brian Marshall, Esq.
    Name: Brian Marshall, Esq.
    Title: General Counsel
      Smurfit Kappa Group plc
      Beech Hill
      Clonskeagh
      Dublin 4
      Solicitor Roll number S5106

 

[Signature Page to First Supplemental Indenture]

 

 

 

 

  SMURFIT KAPPA INVESTMENTS LIMITED
   
  By: /s/ Brian Marshall, Esq.
    Name: Brian Marshall, Esq.
    Title: General Counsel
      Smurfit Kappa Group plc
      Beech Hill
      Clonskeagh
      Dublin 4
      Solicitor Roll number S5106

 

[Signature Page to First Supplemental Indenture]

 

 

 

 

  SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY
   
  By: /s/ Brian Marshall, Esq.
    Name: Brian Marshall, Esq.
    Title: General Counsel
      Smurfit Kappa Group plc
      Beech Hill
      Clonskeagh
      Dublin 4
      Solicitor Roll number S5106

 

[Signature Page to First Supplemental Indenture]

 

 

 

 

  DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee
   
  By: /s/ Kieran Odedra
    Name: Kieran Odedra
    Title: Associate Director
   
  By: /s/ David Contino
    Name: David Contino
    Title: Associate Director

 

[Signature Page to First Supplemental Indenture]

 

 

 

 

Exhibit 4.5

 

Execution Version

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY,
as Issuer

 

SMURFIT KAPPA GROUP PLC,
SMURFIT KAPPA INVESTMENTS LIMITED,
each as a Parent Guarantor

 

SMURFIT INTERNATIONAL B.V.,
SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY,
SMURFIT KAPPA TREASURY UNLIMITED COMPANY,
each as a Subsidiary Guarantor

 

and

 

DEUTSCHE TRUSTEE COMPANY LIMITED,
as Trustee

 

 

 

SECOND SUPPLEMENTAL INDENTURE

 

Dated as of October 5, 2023

 

to

 

INDENTURE

 

Dated as of June 28, 2018

 

 

 

2.875% Senior Notes due 2026

 

 

 

 

SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of October 5, 2023, among (i) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as issuer (the “Issuer”), (ii) Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as parent guarantor (“SKG”), (iii) Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as parent guarantor (“SKI”, and together with SKG, the “Parent Guarantors”), (iv) Smurfit International B.V., a private limited company incorporated under the laws of Netherlands and having its registered office at Warandelaan 2, 4904 PC Oosterhout, the Netherlands as subsidiary guarantor (“SIB”), (v) Smurfit Kappa Treasury Funding Designated Activity Company, a designated activity company limited by shares incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as subsidiary guarantor (“SKD”), (vi) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as subsidiary guarantor (“SKT”, and together with SIB and SKD, the “Subsidiary Guarantors”, and together with the Parent Guarantors, the “Guarantors”) and (vii) Deutsche Trustee Company Limited, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS, among others, the Issuer, the Trustee and the Guarantors have executed and delivered an indenture dated as of June 28, 2018 (the “Base Indenture”, as amended and supplemented by the first supplemental indenture, dated as of February 4, 2019 (the “First Supplemental Indenture”) and, as further amended and supplemented by this Supplemental Indenture, and as the same may be further amended, supplemented or modified from time to time, the “Indenture”), providing for the issuance by the Issuer of €1,000,000,000 aggregate principal amount of its 2.875% Senior Notes due 2026 (the “Notes”);

 

WHEREAS, the parties hereto have agreed to make certain modifications to the Base Indenture with respect to the Notes subject to the terms and conditions set forth herein;

 

WHEREAS, Section 9.2 (With Consent of Holders of Notes) of the Base Indenture provides that the Issuer, the Guarantors and the Trustee may, with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes, amend the Indenture subject to certain limitations set forth in the Indenture;

 

WHEREAS, the Issuer solicited consents from Holders of the Notes pursuant to the consent solicitation statement dated September 27, 2023 (the “Consent Solicitation Statement”) to certain proposed amendments to the Base Indenture as contained herein upon the terms and subject to the conditions set forth therein, which consents were received on October 5, 2023;

 

WHEREAS, the Issuer has requested that the Trustee execute and deliver this Supplemental Indenture and for this purpose has delivered to the Trustee (i) evidence that the Required Consents (as defined in the Consent Solicitation Statement) with respect to the Notes to effect the amendments contained herein have been duly and validly received by the Issuer and (ii) the Officers’ Certificate and Opinion of Counsel as required by the terms of the Indenture;

 

2

 

 

WHEREAS, this Supplemental Indenture shall become effective and operative upon the date hereof (the “Effective Time”);

 

WHEREAS, Section 9.3 (Revocation and Effect of Consents) of the Base Indenture provides that, when a supplemental indenture becomes effective in accordance with its terms, it thereafter binds every Holder, including any subsequent Holder, of the Notes;

 

WHEREAS, this Supplemental Indenture is being entered into pursuant to Sections 9.2 (With Consent of Holders of Notes) and 9.5 (Trustee to Sign Amendments, etc.) of the Base Indenture;

 

AND WHEREAS, all acts and things necessary to make this Supplemental Indenture a valid agreement according to its terms have been done and performed, and the execution of this Supplemental Indenture and the amendments to the Base Indenture as provided herein has been duly authorized in all respects;

 

NOW THEREFORE, in consideration of the premises, and for the purpose of setting forth the amendments to the Base Indenture as provided herein, each of the Issuer and the Guarantors covenants and agrees with the Trustee as follows:

 

ARTICLE 1

Defined Terms

 

Section 1.01        Definition of Base Indenture and First Supplemental Indenture. In this Supplemental Indenture, “Base Indenture” and “First Supplemental Indenture” have the meaning set forth in the recitals above.

 

Section 1.02        Defined Terms. Capitalized terms used in this Supplemental Indenture without definition shall have the meanings assigned to them in the Indenture or in the preamble or recitals thereto. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

 

3

 

 

ARTICLE 2

Amendments to the Base Indenture

 

Section 2.01        Amendments to Section 1.1 (Definitions). Subject to Section 3.01 (Effectiveness) hereof, Section 1.1 (Definitions) of the Base Indenture is hereby amended and restated to (i) replace each of the definitions of “Change of Control” and “IFRS” to read in its entirety as provided below; and (ii) include new definitions of “Merger Parent Entity”, “Merger Transaction”, “Transaction Agreement” and “U.S. GAAP” as provided below:

 

(a)               “Change of Control” means the occurrence of any of the following:

 

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

 

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

 

(3)               the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) other than a Parent Guarantor or other direct or indirect parent company that is wholly owned by a Parent Guarantor becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Issuer, measured by voting power rather than number of shares.

 

Notwithstanding the foregoing, the consummation of the Merger Transaction (including the direct or indirect acquisition of SKG by the Merger Parent Entity) pursuant to the terms of the Transaction Agreement, shall not constitute a Change of Control.”

 

(b)               “IFRS” means International Financial Reporting Standards as adopted by the European Union, International Financial Reporting Interpretations Committee as in effect as of the date of this Indenture; provided, however, that all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with IFRS as in effect on the date of such report or other financial information; provided, further, that at any time after completion of the Merger Transaction, the Issuer may elect irrevocably, and notify the Trustee and the Holders of such election, that IFRS shall mean U.S. GAAP as in effect on the date of such election; provided, however, that following such election all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with U.S. GAAP as in effect on the date of such report or other financial information. All ratios and computations based on IFRS contained in this Indenture will be computed in conformity with IFRS or U.S. GAAP, as applicable.”

 

(c)               “Merger Parent Entity” means Cepheidway Limited, a private company limited by shares incorporated under the laws of Ireland (to be renamed and re-registered as Smurfit WestRock plc, a public company limited by shares incorporated under the laws of Ireland), or such other entity, in each case, which will become the direct or indirect shareholder of SKG in connection with the Merger Transaction and which is expected to be listed on the New York Stock Exchange and/or the London Stock Exchange.”

 

4

 

 

(d)               (“Merger Transaction” means the business combination of SKG group and WestRock Company, a Delaware corporation (“WestRock”) to be consummated pursuant to the Transaction Agreement.”

 

(e)               “Transaction Agreement” means the transaction agreement dated September 12, 2023, by and among, inter alios, SKG and WestRock, as amended, supplemented or modified from time to time.”

 

(f)                “U.S. GAAP” means generally accepted accounting principles in the United States as set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States.”

 

Section 2.02        Amendments to Certain Covenants.

 

(a)               Subject to Section 3.01 (Effectiveness) hereof, sub-section (b) of Section 4.17 (Reports) of the Base Indenture is hereby amended and restated to read in its entirety as follows:

 

(b)               “For so long as any Notes are outstanding, the Issuer will provide to the Trustee such other information as SKG is required to make publicly available under the requirements of Euronext Dublin, the London Stock Exchange or the New York Stock Exchange as a result of having its ordinary shares admitted for trading on such exchanges. Upon complying with the public reporting requirements of Euronext Dublin, the London Stock Exchange or the New York Stock Exchange (regardless of whether SKG’s ordinary shares are admitted for trading on either such exchange), provided that such requirements include an obligation to prepare and make publicly available annual reports, information, documents and other reports with Euronext Dublin, the London Stock Exchange or the New York Stock Exchange, the Issuer will be deemed to have complied with the provisions contained in clauses (1) through (3) of Section 4.17(a).”

 

(c)               Subject to Section 3.01 (Effectiveness) hereof, a new sub-section (d) is added at the end of Section 4.17 (Reports) of the Base Indenture as follows:

 

(d)               “After completion of the Merger Transaction, the Issuer may elect, and shall notify the Trustee and the Holders of the Notes of such election, to submit to the Trustee and the Holders of the Notes, the financial statements, reports and other information of the Merger Parent Entity to comply with sub-sections (a) and (b) of this Section 4.17, instead of such information of SKG. If the Issuer makes such election, then it will be deemed to have provided such information to the Trustee, the Holders of the Notes and prospective purchasers if such information referenced above in sub-sections (a)(1) through (a)(3) and sub-section (b) of this Section 4.17 has been posted on Merger Parent Entity’s website.”

 

Section 2.03        Corresponding Amendments. With effect on and from the date hereof, each Global Note shall be deemed supplemented, modified and amended in such manner as necessary to make the terms of such Global Note consistent with the terms of the Indenture, as amended by this Supplemental Indenture. To the extent of any conflict between the terms of the Notes and the terms of the Indenture, as amended by this Supplemental Indenture, the terms of the Indenture, as amended by this Supplemental Indenture, shall govern and be controlling.

 

5

 

 

ARTICLE 3

Miscellaneous

 

Section 3.01        Effectiveness. The provisions of this Supplemental Indenture shall be effective and operative upon the Effective Time.

 

Section 3.02        Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.

 

Section 3.03        Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

Section 3.04        Severability. In case any one or more of the provisions in this Supplemental Indenture shall be held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

Section 3.05        Ratification of Base Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Base Indenture, as supplemented by the First Supplemental Indenture, is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

Section 3.06        Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

Section 3.07        Incorporation by Reference. Section 11.8 (Submission to Jurisdiction; Appointment of Agent for Service) of the Base Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

Section 3.08        Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof.

 

6

 

 

Section 3.09        Section 3.09 Successors. All covenants and agreements of the Issuer, the Guarantors and the Trustee in this Supplemental Indenture shall bind their respective successors and assigns.

 

Section 3.10        Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

(Signature pages follow)

 

7

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY, as Issuer
   
  By: /s/ Emer Murnane
    Name: Emer Murnane
    Title: Director
   
  SMURFIT KAPPA GROUP PLC,
  as a Parent Guarantor
   
  By: /s/ Kenneth Bowles
    Name: Kenneth Bowles
    Title: Director
   
  SMURFIT KAPPA INVESTMENTS LIMITED,
  as a Parent Guarantor
   
  By: /s/ Kenneth Bowles
    Name: Kenneth Bowles
    Title: Director
   
  SMURFIT INTERNATIONAL B.V.,
  as a Subsidiary Guarantor
   
  By: /s/ PJA Koelewijn
    Name: PJA Koelewijn
    Title: Director

 

(Signature page to Supplemental Indenture – 2026 Notes)

 

 

 

 

  SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY,
  as a Subsidiary Guarantor
   
   
  By: /s/ Emer Murnane
    Name: Emer Murnane
    Title: Director
   
   
  SMURFIT KAPPA TREASURY UNLIMITED COMPANY,
  as a Subsidiary Guarantor
   
   
  By: /s/ Emer Murnane
    Name: Emer Murnane
    Title: Director

 

(Signature page to Supplemental Indenture – 2026 Notes)

 

 

 

 

  DEUTSCHE TRUSTEE COMPANY LIMITED,
  as Trustee
   
   
  By: /s/ Robert Bebb
    Name: Robert Bebb
    Title: Associate Director
   
   
  By: /s/ Paul Berwick
    Name: Paul Berwick
    Title: Associate Director

 

(Signature page to Supplemental Indenture – 2026 Notes)

 

 

 

 

Exhibit 4.6

 

THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of July 5, 2024, among (i) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland (the “Issuer”); (ii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors”) and (iii) Deutsche Trustee Company Limited, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS the Issuer, the guarantors party thereto, the Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar, have heretofore executed an Indenture, dated as of June 28, 2018 (as amended or supplemented to the date hereof, the “Indenture”), providing for the issuance of 2.875% Senior Notes due 2026 (the “Notes”) by the Issuer;

 

WHERAS Smurfit Kappa Group plc, an Irish public limited company (“SKG”), the indirect parent of the Issuer, has entered into a transaction agreement, dated as of September 12, 2023, with WestRock Company, a Delaware corporation (“WestRock”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Smurfit WestRock (the “Transaction Agreement”);

 

WHEREAS, pursuant to the terms of the Transaction Agreement, the parties thereto agreed to consummate a combination (the “Combination”), following which Smurfit WestRock will be the parent of each of SKG and WestRock;

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all of the other applicable provisions of the Indenture and the Notes (the “New Guarantees”); and

 

WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer, the New Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.            Agreement to Guarantee. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.            Agreement to be Bound. Each New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

1

 

 

3.            Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

4.            Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.            Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart signature page by facsimile, e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

7.            Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.            Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

[Signature pages follow]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

Issuer

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2018 Indenture]

 

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT WESTROCK PLC

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2018 Indenture]

 

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION

 

By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2018 Indenture]

 

 

 

 

WESTROCK COMPANY

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2018 Indenture]

 

 

 

 

WRKCO INC.

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2018 Indenture]

 

 

 

 

WESTROCK MWV, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2018 Indenture]

 

 

 

 

WESTROCK RKT, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2018 Indenture]

 

 

 

 

  Deutsche Trustee Company Limited, as Trustee
   
  By: /s/J. Woodger
    Name: J. Woodger
    Title: Associate Director
     
  By: /s/ Lauren Taylor
    Name: Lauren Taylor
    Title: Associate Director

 

[Supplemental Indenture to Smurfit Kappa Acquisitions ULC 2018 Indenture]

 

 

 

 

Exhibit 4.7

 

SMURFIT CAPITAL FUNDING PLC

Issuer

 

JEFFERSON SMURFIT GROUP PUBLIC LIMITED COMPANY

Guarantor

 

SMURFIT INTERNATIONAL B.V.

Guarantor

 

PACKAGING INTERNATIONAL FINANCE

Guarantor

 

TO

 

CHEMICAL BANK

Trustee

 

 

 

Indenture

 

 

 

Dated as of November 15, 1995

 

 

 

Guaranteed Debt Securities

 

 

 

 

 

PAGE

 

TABLE OF CONTENTS

 

PARTIES 1
RECITALS OF THE COMPANY 1
RECITALS OF THE GUARANTORS 1

 

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

SECTION 101. Definitions:  

  Act      2
  Affiliate      2
  Attributable Debt      2
  Authenticating Agent      3
  Authorized Newspaper      3
  Board of Directors      3
  Board Resolution      3
  Business Day      3
  Commission      3
  Company      3
  Consolidated Net Tangible Assets      3
  Corporate Trust Office      4
  Corporation      4
  Covenant Defeasance      4
  Defaulted Interest      4
  Defeasance      4
  Depositary      4
  Event of Default      4
  Exchange Act      4
  Expiration Date      4
  Global Security      4
  Group      4
  Guarantee      4
  Guarantor      4
  Holder      4
  Indebtedness      5
  Indenture      5
  Interest      5
  Interest Payment Date      5
  Investment Company Act      5
  Issuer      5
  Issuer Request; Issuer Order      5
  Lien      5
  Material Subsidiary      6
  Maturity      6
  Notice of Default      6
  Officer's Certificate      6
  Opinion of Counsel      6
  Original Issue Discount Security      6
  Outstanding      6
  Paying Agent      7

 

i

 

 

SMURFIT CAPITAL FUNDING PLC
JEFFERSON SMURFIT GROUP PUBLIC LIMITED COMPANY

 

Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:

 

Trust
Act

  

Indenture
Section

  

Indenture
Section

§310   (a)(1) 609
    (a)(2) 609
    (a)(3) Not Applicable
    (a)(4) Not Applicable
    (b)

608

610

§311   (a) 613
    (b) 613
§312   (a)

701

702

    (b) 702
    (c) 702
§313   (a) 703
    (b) 703
    (c) 703
    (d) 703
§314   (a) 704
    (a)(4)

101

1005

    (b) Not Applicable
    (c)(1) 102
    (c)(2) 102
    (c)(3) Not Applicable
    (d) Not Applicable
    (e) 102
§315   (a) 601
    (b) 602
    (c) 601
    (d) 601
    (e) 514
§316   (a) 101
    (a)(1)(A)

502

512

    (a)(1)(B) 513
    (a)(2) Not Applicable
    (b) 508
    (c) 104
§317   (a)(1) 503
    (a)(2) 504
    (b) 1003
§318   (a) 107

 

 

Note:This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

 

 

 
  Person      7
  Place of Payment      8
  Predecessor Security      8
  Principal Property      8
  Redemption Date      8
  Redemption Price      8
  Regular Record Date      8
  Responsible Officer      8
  Restricted Group      8
  Restricted Subsidiary      8
  Sale and Leaseback Transaction      9
  Securities      9
  Securities Act      9
  Security Register and. Security Registrar      9
  Special Record Date      9
  Stated Maturity      9
  Subsidiary      9
  Subsidiary Guarantee      9
  Subsidiary Guarantor      9
  Trust Indenture Act      9
  Trustee      10
  Unrestricted Subs      10
  U.S. Government Obligation      10
  Vice President      10

SECTION 102. Compliance Certificates and Opinions 10
SECTION 103. Form of Documents Delivered to Trustee 11
SECTION 104. Acts of Holders; Record Dates 12
SECTION 105. Notices, Etc., to Trustee, Issuer and Guarantors 14
SECTION 106. Notice to Holders; Waiver 14
SECTION 107. Language of Notices, Etc. 15
SECTION 108. Conflict with Trust Indenture Act 15
SECTION 109. Effect of Headings and Table of Contents 15
SECTION 110. Successors and Assigns 15
SECTION 111. Separability Clause 15
SECTION 112. Benefits of Indenture 16
SECTION 113. Governing Law 16
SECTION 114. Saturdays, Sundays and Legal Holidays 16
SECTION 115. Appointment of Agent for Service 16

 

ARTICLE TWO

SECURITY FORMS

 

SECTION 201. Forms Generally 17
SECTION 202. Form of Face of Security 18
SECTION 203. Form of Reverse of Security 20
SECTION 204. Form of Legend for Global Securities 26
SECTION 205. Guarantees by Guarantors; Form of Guarantees 27
SECTION 206. Form of Trustee’s Certificate of Authentication 31

 

ii

 

 

ARTICLE THREE

THE SECURITIES

 

SECTION 301. Amount Unlimited; Issuable in Series 31
SECTION 302. Denominations 34
SECTION 303. Execution, Authentication, Delivery and Dating 34
SECTION 304. Temporary Securities 36
SECTION, 305. Registration, Registration of Transfer and Exchange 36
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 38
SECTION 307. Payment of Interest; Interest Rights Preserved 39
SECTION 308. Persons Deemed Owners 41
SECTION 309. Cancellation 41
SECTION 310. Computation of Interest 41

 

ARTICLE FOUR

SATISFACTION AND DISCHARGE  

 

SECTION 401. Satisfaction and Discharge of Indenture 41
SECTION 402. Application of Trust Money 43

 

ARTICLE FIVE

REMEDIES

 

SECTION 501. Events of Defaults 43
SECTION 502. Acceleration of Maturity; Rescission and Annulment 45
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee 46
SECTION 504. Trustee May File Proofs of Claim 46
SECTION 505. Trustee May Enforce Claims Without Possession of Securities 47
SECTION 506. Application of Money Collected 47
SECTION 507. Limitation on Suits 48
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest 48
SECTION 509. Restoration of Rights and Remedies 49
SECTION 510. Rights and Remedies Cumulative 49
SECTION 511. Delay or Omission Not Waiver 49
SECTION 512. Control by Holders 49
SECTION 513. Waiver of Past Defaults 50
SECTION 514. Undertaking for Costs 50
SECTION 515. Waiver of Usury, Stay or Extension Laws 50

 

iii

 

 

ARTICLE SIX

THE TRUSTEE

 

SECTION 601. Certain Duties and Responsibilities 51
SECTION 602. Notice of Defaults 51
SECTION 603. Certain Rights of Trustee 51
SECTION 604. Not Responsible for Recitals or Issuance of Securities 52
SECTION 605. May Hold Securities 53
SECTION 606. Money Held in Trust 53
SECTION 607. Compensation and Reimbursement 53
SECTION 608. Conflicting Interests 54
SECTION 609. Corporate Trustee Required; Eligibility 54
SECTION 610. Resignation and Removal; Appoint of Successor 54
SECTION 611. Acceptance of Appointment by Successor 56
SECTION 612. Merger, Conversion, Consolidation or Succession to Business 57
SECTION 613. Preferential Collection of Claims Against Issuer or Any Guarantor 57
SECTION 614. Appointment of Authenticating Agent 58

 

ARTICLE SEVEN

HOLDERS LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARANTORS

 

SECTION 701. Issuer and Guarantors to Furnish Trustee Names and Addresses of Holders 60
SECTION 702. Preservation of Information; Communications to Holders 60
SECTION 703. Reports by Trustee 60
SECTION 704. Reports by Issuer and Guarantors 61

 

ARTICLE EIGHT

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

SECTION 801. Issuer or Any Guarantor May Consolidate, Etc., On Certain Terms 61
SECTION 802. Successor Substituted 62
SECTION 803. Assumption by Guarantor or Subsidiary of Issuer’s Obligations 63

 

ARTICLE NINE

SUPPLEMENTAL INDENTURES

 

SECTION 901. Supplemental Indentures Without Consent of Holders 64

 

iv

 

 

SECTION 902. Supplemental Indentures With Consent of Holders 66
SECTION 903. Execution of Supplemental Indentures 67
SECTION 904. Effect of, Supplemental Indentures 67
SECTION 905. Conformity with Trust Indenture Act 67
SECTION 906. Reference in Securities to Supplemental Indentures 68

 

ARTICLE TEN

COVENANTS

 

SECTION 1001. Payment of Principal, Premium and Interest 68
SECTION 1002. Maintenance of Office or Agency 68
SECTION 1003. Money for Securities Payments to be Held in Trust 69
SECTION 1004. Additional Amounts 70
SECTION 1005. Statement by Officers as to Default 72
SECTION 1006. Existence 72
SECTION 1007. Maintenance of Properties 73
SECTION 1008. Payment of Taxes and Other Claims 73
SECTION 1009. Limitations on Liens 73
SECTION 1010. Limitations on Sales and Leasebacks 75
SECTION 1011. Waiver of Certain Covenants 75

 

ARTICLE ELEVEN

REDEMPTION OF SECURITIES

 

SECTION 1101. Applicability of Article 76
SECTION 1102. Election to Redeem; Notice to Trustee 76
SECTION 1103. Selection by Trustee of Securities to Be Redeemed 76
SECTION 1104. Notice of Redemption 77
SECTION 1105. Deposit of Redemption Price 78
SECTION 1106. Securities Payable on Redemption Date 78
SECTION 1107. Securities Redeemed in Part 78
SECTION 1108. Optional Redemption Due to Changes in Tax Treatment 79

 

ARTICLE TWELVE

SINKING FUNDS  

 

SECTION 1201. Applicability of Article 80
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities 81
SECTION 1203. Redemption of Securities for Sinking Fund 81

 

v

 

 

ARTICLE THIRTEEN

DEFEASANCE AND COVENANT DEFEASANCE  

 

SECTION 1301. Option of Issuer and Guarantors to Effect Defeasance or Covenant Defeasance 82
SECTION 1302. Defeasance and Discharge 82
SECTION 1303. Covenant Defeasance 82
SECTION 1304. Conditions to Defeasance or Covenant Defeasance 83
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions 85
SECTION 1306. Reinstatement 86

 

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INDENTURE, dated as of November 15, 1995, among SMURFIT CAPITAL FUNDING PLC, a public limited company duly incorporated under the laws of Ireland (herein called the “Issuer”), having its registered office at IFSC House, Customs House Quay, Dublin 1, Ireland, JEFFERSON SMURFIT GROUP PUBLIC LIMITED COMPANY, a public limited company duly incorporated and existing under the laws of Ireland, having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Company”), SMURFIT INTERNATIONAL B.V., a company organized with limited liability under the laws of The Netherlands, having its registered office at Strawinskylaan 2001, 1077 ZZ(Amsterdam, The Netherlands (“SIBV”), PACKAGING INTERNATIONAL FINANCE, an unlimited company organized under the laws of Ireland, having its registered office at IFSC House, Customs House Quay, Dublin 1, Ireland (“PIF”) (each of the Company, SIBV and PIF may also be herein called a “Guarantor”, and together, the “Guarantors”), and CHEMICAL BANK, a banking corporation duly organized and existing under the laws of the State of New York, as Trustee, (herein called the “Trustee”).

 

RECITALS OF THE ISSUER

 

The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.

 

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, hive been done.

 

RECITALS OF THE GUARANTORS

 

Each of the Guarantors has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its Guarantee (each, a “Guarantee” and, together, the “Guarantees”), to be issued in connection with each series of Securities to be issued pursuant to this Indenture.

 

All things necessary to make this Indenture a valid agreement of the Guarantors, in accordance with its terms, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

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

 

 

 

Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

SECTION 101. Definitions.

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context requires:

 

(1)          the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(2)          all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference herein, have the meanings assigned to them therein;

 

(3)          all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in Ireland at the date of such computation and as applied by the Company;

 

(4)          unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; and

 

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

 

“Act”, when used with respect to any Holder, has the meaning specified in Section 104.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Attributable Debt” shall mean, in connection with a Sale and Leaseback Transaction, the lesser of (a) the fair market value of the real or personal property subject to such transaction, and (b) the present value (discounted according to generally accepted accounting principles at the debt rate implicit in the lease) of the obligations of the lessee for -rental payments during the remaining term of the lease entered into in such transaction.

 

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“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.

 

“Authorized Newspaper” means a Newspaper of general circulation in the relevant area, printed in the English Language and customarily published on each business day, whether or not published on Saturdays, Sundays or holidays. Whenever successive weekly publications in an Authorized Newspaper are authorized hereunder, they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers.

 

“Board of Directors”, when used with reference to the Issuer or a Guarantor, means either the board of directors of the Issuer or such Guarantor, as the case may be, or any duly authorized committee of such board.

 

“Board Resolution”, when used with reference to the Issuer or a Guarantor, means a copy of a resolution certified, in the case of the Issuer, by the Secretary or an Assistant Secretary of the Issuer or, in the case of a Guarantor, by any Director or the Secretary or an Assistant Secretary of such Guarantor, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

“Business Day”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment and in New York City are authorized or obligated by law, regulation or executive order to close.

 

“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

“Consolidated Net Tangible Assets” of the Group means the aggregate amount of consolidated total assets of the Group, after deducting therefrom (a) all liabilities due within one year (other than (x) short-term borrowings and (y) long-term debt due within one year) and (b) all goodwill, tradenames, trademarks, patents and other like intangibles, as shown on the audited consolidated balance sheet contained in the latest annual report to shareholders of the Company.

 

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“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate-trust business shall be principally administered, which office at the date of initial execution of this Indenture is located at 450 West 33rd Street, New York, NY 10001.

 

“Corporation” means a corporation, association, company, joint-stock company or business trust.

 

“Covenant Defeasance” has the meaning specified in Section 1303.

 

“Defaulted Interest” has the meaning specified in Section 307.

 

“Default” means the occurrence of any event which with the giving of notice or passing of time will become an Event of Default.

 

“Defeasance” has the meaning specified in Section 1302.

 

“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.

 

“Event of Default” has the meaning specified in Section 501.

 

“Exchange Act” means the United States Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

 

“Expiration Date” has the meaning specified in Section 104.

 

“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities).

 

“Group” shall mean the Company and its consolidated subsidiaries, collectively.

 

“Guarantee” means any Guarantee of each Guarantor endorsed on a Security authenticated and delivered pursuant to this Indenture and shall include the Guarantee set forth in Section 205.

 

“Guarantor” means each of the Persons named as the “Guarantor” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture and thereafter “Guarantor” shall include such successor Person.

 

“Holder” means a Person in whose name a Security is registered in the Security Register.

 

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“Indebtedness” means, with respect to any Person, at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such-Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (iv) all obligations of such Person as lessee which are capitalized in accordance with generally accepted accounting principles, and (v) all Indebtedness of others guaranteed by such Person.

 

“Indenture” means this instrument as originally executed and as it may from time to time.be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.

 

“Interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

 

“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an instalment of interest on such Security.

 

“Investment Company Act” means the United States Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.

 

“Issuer” means the Person named as the “Issuer” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer!’ shall mean such successor Person.

 

“Issuer Request” or “Issuer Order” means a written request or order signed in the name of the Issuer by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, or by any Director and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary or any Director (or an attorney-in-fact of one of these persons), and delivered to the Trustee.

 

“Lien” shall mean any mortgage, pledge, security interest, encumbrance, lien (statutory or otherwise) or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement (other than a title retention agreement arising in the ordinary course of business in respect of the sale of property or assets of any nature to any member of the Restricted Group), any lease in the nature thereof (other than a Sale-and Leaseback Transaction)), or the filing of or agreement to give any financing statement under the Uniform Commercial Code or similar laws relating to the filing or registration of security interests as in effect in any jurisdiction.

 

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“Material Subsidiary” means any Subsidiary that constitutes a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X promulgated under the U.S. Securities Act of 1933, as amended.

 

“Maturity”, when used with respect to any Security, means the date on which the_ principal of such Security or an instalment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

 

“Notice of Default” means a written notice of the kind specified in Section 501(4) or 507(1).

 

“Officer’s Certificate” means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or Vice President, the Treasurer, the Secretary or any Director (or an attorney-in-fact of one of those persons) of the Issuer, or, in the case of a Guarantor, by any Director, the Secretary or the Treasurer of such Guarantor, each delivered to the Trustee. The officer signing an Officer’s Certificate given pursuant to Section 1004 shall be the principal executive, financial or accounting officer of the Issuer or the applicable Guarantor, as the case may be or any person performing similar functions.

 

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Issuer or the Guarantors, and who shall be acceptable to the Trustee.

 

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.

 

“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(1)          Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(2)          Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given-pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

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(3)          Securities as to which Defeasance has been effected pursuant to Section 1302; and

 

(4)          Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Issuer;

 

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Issuer, a Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, a Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer, a Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, a Guarantor or of such other obligor.

 

“Paying Agent” means any Person authorized by the Issuer to pay the principal of or any premium or interest on any Securities on behalf of the Issuer and which initially shall be the Trustee.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

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“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.

 

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security.

 

“Principal Property” means any paperboard, paper or pulp mill or any paper converting plant of the Group but shall not include any plant which in the good faith opinion of the Board of Directors of the Company is not of material importance to the total business conducted by the Group.

 

"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

 

"Redemption Price", when used with respect to any Security to be redeemed, means the price at pursuant to this Indenture.

 

"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.

 

"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.

 

"Responsible Officer", when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any Senior Trust Officer, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

"Restricted Group" shall mean the Company, the Issuer and the Restricted Subsidiaries, collectively.

 

"Restricted Subsidiary" shall mean any Subsidiary, other than an Unrestricted Subsidiary, of the Company or the Issuer, provided that in the event Jefferson Smurfit Corporation (or any successor company) becomes a Subsidiary of the Company, neither it nor any of its Subsidiaries will be Restricted Subsidiaries unless so designated by the Company.

 

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“Sale and Leaseback Transaction” shall mean any sale and leaseback transaction entered into by a member of-the Restricted Group more than 270 days after the acquisition by such-Person of the real or personal property that is sold and leased back in such transaction.

 

“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.

 

“Securities Act” means the United States Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.

 

“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.

 

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee, after consultation with the Issuer pursuant to Section 307.

 

“Stated Maturity”, when used with respect to any Security or any instalment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such instalment of principal or interest is due and payable.

 

“Subsidiary” means with respect to the Issuer, a Guarantor or any Unrestricted Subsidiary, as the case may be, any corporation that is a “subsidiary” thereof pursuant to the definition contained in Section 155 of the Companies Act, 1963 of Ireland. Section 155 provides that a company shall be deemed to be a subsidiary of another if, but only if (a) that other, (i) is a member of it and controls the composition of its board of directors, or (ii) holds more than half in nominal value of its equity share capital, or (iii) holds more than half in nominal value of its shares carrying voting rights (other than voting rights which arise only in specified circumstances); or (b) the first-mentioned company is a subsidiary of any company which is that other’s subsidiary.

 

“Subsidiary Guarantee” means a Guarantee given pursuant to this Indenture by a Subsidiary Guarantor.

 

“Subsidiary Guarantor” means any of SIBV and PIF, or any Person substituted for either in accordance with the terms of this Indenture.

 

“Trust Indenture Act” means the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the United States Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the United States Trust Indenture Act of 1939 as so amended.

 

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“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor. Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.

 

“Unrestricted Subsidiary” shall mean (i) Smurfit Finance Ltd., (ii) any other Subsidiary of the Company that at the time of formation or acquisition by a member of the Group after the date hereof shall be designated as an Unrestricted Subsidiary by the Company and (iii) any Subsidiary of an Unrestricted Subsidiary. The Company may designate any newly acquired or newly formed Subsidiary of it to be an Unrestricted Subsidiary by providing written notice of such designation to the Trustee within 45 days after the formation or acquisition thereof, provided that no Event of Default shall exist immediately prior to, as a result of, or immediately after giving effect to such designation. The Company may also rescind the designation of any Subsidiary of it as an Unrestricted Subsidiary at any time by providing written notice of such rescission to the Trustee provided that no Default or Event of Default shall exist immediately prior to, as a result of, or immediately after giving effect to such rescission. Under no circumstances may a Restricted Subsidiary be designated as an Unrestricted Subsidiary.

 

“U.S. Government. Obligation” has the meaning specified in Section 1304.

 

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

 

SECTION 102. Compliance Certificates and Opinions.

 

Upon any application or request by the Issuer or a Guarantor to the Trustee to take or refrain from taking any action under any provision of this Indenture, the Issuer or such Guarantor shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officer’s Certificate, if to be given by an officer of the Issuer or such Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 1004) shall include,

 

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(1)          a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

(2)          a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)          a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(4)          a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

SECTION 103. Form of Documents Delivered to Trustee.

 

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 such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such 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 Issuer or a Guarantor 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 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 Issuer or a Guarantor stating that the information with respect to such factual matters is in the possession of the Issuer or such Guarantor, 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 to 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.

 

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SECTION 104. Acts of Holders; Record Dates.

 

Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made 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; and, except as herein otherwise expressly provided, such action shall become effective when-such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the Guarantors. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section’601) conclusive in favor of the Trustee and the Issuer and the Guarantor, if made in the manner provided in this Section.

 

The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgements of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

 

The ownership of Securities shall be proved by the Security Register.

 

Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Issuer or a Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.

 

The Issuer and the Guarantors may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Issuer or the Guarantors may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take or revoke the relevant action, whether or not such Holders remain Holders after such record date; provided that no such-action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Issuer or the Guarantors from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set, pursuant to this paragraph, the Issuer or the Guarantors, at their own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given’ to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.

 

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The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, or to revoke the same, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Issuer’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Issuer and each Guarantor in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.

 

With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.

 

13

 

 

Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security 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.

 

SECTION 105. Notices, Etc., to Trustee, Issuer and Guarantors.

 

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1)          the Trustee by any Holder or by the Issuer or any Guarantor shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed or mailed first-class postage prepaid in each case in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trustee Administration, or

 

(2)          the Issuer or any Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, in the case of the Issuer, international air mail postage prepaid and addressed to it at the address of its principal office specified in the first paragraph of this instrument to the attention of the Secretary or at any other address previously furnished in writing to the Trustee by the Issuer and, in the case of each Guarantor, international air mail postage prepaid and addressed to its registered office specified in the first paragraph of this instrument to the attention of its Secretary, or at such other address previously furnished in writing to the Trustee by such Guarantor.

 

SECTION 106. Notice to Holders; Waiver.

 

Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest day (if any), and not earlier that the earliest day (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

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In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

SECTION 107. Language of Notices, Etc.

 

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.

 

SECTION 108. Conflict with Trust Indenture Act.

 

If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

SECTION 109. Effect of Headings and Table of Contents.

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 110. Successors and Assigns.

 

All covenants and agreements in this Indenture by the Issuer or any Guarantor shall bind its successors and assigns, whether so expressed or not.

 

SECTION 111. Separability Clause.

 

In case any provision in this Indenture or in the Securities or the Guarantees 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.

 

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SECTION 112. Benefits of Indenture.

 

Nothing in this Indenture or in the Securities or the Guarantees, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

SECTION 113. Governing Law.

 

This Indenture, the Securities and the Guarantees shall be governed by and construed in accordance with the law of the State of New York.

 

SECTION 114. Saturdays, Sundays and Legal Holidays.

 

In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall- not be a Business Day at any Place-of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity; provided, that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.

 

SECTION 115. Appointment of Agent for Service.

 

By the execution and delivery of this Indenture, the Issuer and each Guarantor hereby appoints CT Corporation System as its respective agent upon which process may be served in any legal action or proceeding which may be instituted in any Federal or State court in the Borough of Manhattan, the City of New York, arising out of or relating to the Securities, the Guarantees or this Indenture, but for that purpose only. Service of process upon such agent at the office of such agent at 1633 Broadway, New York, New York 10019, and written notice of said service to the Issuer or such Guarantor by the Person serving the same addressed as provided by Section 105, shall be deemed in every respect effective service of process upon the Issuer or such Guarantor, as the case may be, in any such legal action or proceeding, and the Issuer or such Guarantor hereby submits to the nonexclusive jurisdiction of any such court in which any such legal action or proceeding is so instituted. Such appointment shall be irrevocable so long as the Holders of Securities shall have any rights pursuant to the terms thereof or of this Indenture until the appointment of a successor by the Issuer or such Guarantor with the consent of the Trustee and such successor’s acceptance of such appointment. The Issuer and each Guarantor further agree to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of such agent or successor.

 

16

 

 

Article Two

SECURITY FORMS

 

SECTION 201. Forms Generally.

 

The Securities of each series shall be in substantially the form set forth in this Article, or in such other form=as shall be established by or pursuant ‘to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate instructions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Issuer Order contemplated by Section 303 for the authentication and delivery of such Securities.

 

The Guarantees by the Guarantors to be endorsed on the Securities of each series shall be substantially in the form set forth in Section 205, or as shall be established by or pursuant to a Board Resolution of each Guarantor, or in one or more indentures supplemental hereto, pursuant to Section 301, in each case with such appropriate insertions, omissions, substitutions and other corrections as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the directors or officers delivering such Guarantees, all as evidenced by such delivery.

 

Any such legends or endorsements not contained in the form of the Security as set forth in Section 202 or 203 or in the form of the Guarantees as set forth in Section 205 shall be delivered in writing or by facsimile to the Trustee.

 

The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.

 

17

 

 

SECTION 202. Form of Face of Security.

 

SMURFIT CAPITAL FUNDING PLC

 

[TITLE OF SECURITY]

PAYMENT OF PRINCIPAL[, PREMIUM, IF ANY]

AND INTEREST GUARANTEED BY

JEFFERSON SMURFIT GROUP PUBLIC LIMITED COMPANY,

SMURFIT INTERNATIONAL B.V.

and PACKAGING INTERNATIONAL FINANCE

 

No.__________________$__________________

 

SMURFIT CAPITAL FUNDING PLC, a public limited company duly incorporated under the laws of Ireland (herein called the “Issuer”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to_____________________________, or registered assigns, the principal sum of ___________________Dollars on _____________________________[if the Security is to bear interest prior to Maturity, insert: and to pay interest thereon from _____________ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on _________________ and ________________ in each year, commencing ______, at the rate of____% per annum, until the principal hereof is paid or made available for payment [if applicable, insert: , provided that any principal and premium, and any such instalment of interest, which is overdue shall bear interest at the rate of Ps per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and punctually paid or duly-provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the _________ or ________(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].

 

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If the Security is not to bear interest prior to Maturity, insert: The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security and any overdue premium shall bear interest at the rate of _____% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of _____% per annum (to. the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]

 

Payment of the principal of (and premium, if any) and [if applicable, insert: any such] interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in __________, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if applicable, insert: ; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].

 

Reference is-hereby made to the further provisions of this Security set-forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized officer, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

 

Dated:

 

  SMURFIT CAPITAL FUNDING PLC
   
  By:  
    Name:
    Title:

 

Attest:  
By:                   
Name:  
Title:  

 

19

 

 

SECTION 203. Form of Reverse of Security.

 

This Security is one of a duly authorized issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of November , 1995 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), among the Issuer, JEFFERSON SMURFIT GROUP PUBLIC LIMITED COMPANY, a public limited company duly incorporated under the laws of Ireland (the “Company”), SMURFIT INTERNATIONAL B.V., a. company organized with limited liability under the laws of The Netherlands (“SIBV”) and PACKAGING INTERNATIONAL FINANCE, an unlimited company organized under the laws of Ireland (“PIF”), (each of the Company, SIBV and PIF may herein be called a - “Guarantor”, and together, the “Guarantors”, which terms include any successor Person under the Indenture referred to herein) and CHEMICAL BANK, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture and all indentures supplemental thereto for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, each Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert:, limited in aggregate principal amount to $__________].

 

[If applicable, insert: The Securities of this series are subject to redemption upon not less than 30 days’ notice-by mail, [if applicable,- insert: (1) on _________in any year commencing with the year and ending with the year ________ through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert: on or after _______ __, 19__], as a whole or in part, at the election of the Issuer, at the following Redemption Prices (expressed as percentages of the principal amount: If redeemed (if applicable, insert: on or before ________, ____%, and if redeemed] during the 12-month period beginning ____________ of the years indicated.

 

Year   Redemption Price   Year   Redemption Price 
              
                  
                  

 

and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption [if applicable, insert: (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest instalments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]

 

20

 

 

[If applicable, insert: The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail,(1) on ___________ in any year commencing with the year ____ and ending with the year _______ through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert: on or after _____________], as a whole or in part, at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning ________ of the years indicated.

 

  

Year

  

Redemption Price
For Redemption
Through Operation
of the
Sinking Fund

  

Redemption Price For
Redemption Otherwise
Than Through Operation
of the Sinking Fund

 
             
             
             

 

and thereafter at a Redemption Price equal to       % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest instalments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture]

 

(If applicable, insert: Notwithstanding the foregoing, the Company may not, prior to __________, redeem any Securities of this series as contemplated by [if applicable, insert: Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than ___% per annum.]

 

If applicable, insert: The sinking fund for this series provides for the redemption on ________in each year beginning with the year ____ and ending with the year _____of [if applicable, insert: not less than $__________ (“mandatory sinking fund”) and not more than] $ __________ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert: mandatory] sinking fund payments may be credited against subsequent [if applicable, insert: mandatory) sinking fund payments otherwise required to be made [if applicable, insert: in the inverse order in which they become due].)

 

21

 

 

The Securities may be redeemed at the option of the Issuer or the Company in whole but not in part, upon not less than 30 nor more than 60 days’ notice given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus, accrued interest to the date fixed for redemption [if the Security is an Original Issue Discount Security, insert formula for determining amount], if, as a result of any change in or amendment to the laws or any regulations or-rulings promulgated thereunder of the jurisdiction (or any of political - subdivision or taxing authority thereof or therein) in which the Issuer, the Company or any Subsidiary Guarantor is incorporated or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction (or such political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after _____________, (i) the Issuer, the Company or any Subsidiary Guarantor is or would be required on the next succeeding Interest Payment Date to pay additional amounts with respect to the Securities or (ii) the Company or any Subsidiary Guarantor is or would be required to deduct or withhold tax on any payment Ito the Issuer to enable the Issuer to make any payment of principal or interest] in respect of the [Securities], respectively, and the payment of such additional amounts in the case of (i) above, or such deduction or withholding in the case of (ii) above, cannot be avoided by the use of any reasonable measures available to the Issuer, the Company or the relevant Subsidiary Guarantor.

 

The Securities may also be redeemed in whole, but not in part, upon not less than 30 nor more than 60 days’ notice given as provided in the Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption [if the Security is an Original Issue Discount Security, insert formula for determining amount] if the Person formed by a consolidation of the Issuer, the Company or Subsidiary Guarantor or into which the Issuer, the Company or Subsidiary Guarantor is merged or to which the Issuer, the Company or Subsidiary Guarantor conveys, transfers or leases its properties and assets substantially as an entirety is required to pay additional amounts in respect of any tax, assessment or governmental charge imposed on any Holder or required to be withheld or deducted from any payment to such Holder as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or any political subdivision thereof or therein) in which such person may be incorporated or organized or any change in the official application or interpretation of, or any execution of or amendment to, any, treaty or treaties affecting taxation to which such jurisdiction (or such political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the effective date of such consolidation, merger, conveyance, transfer or lease and such payment of additional amounts or such deduction or withholding cannot be avoided by the use of any reasonable measures available to such Person.

 

22

 

 

Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.

 

[If the Security is subject to redemption of any kind, insert: In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case, upon compliance with certain conditions set forth in the Indenture.

 

[If the Security is not an Original Issue Discount Security, insert: If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]

 

[If the Security is an Original Issue Discount Security, insert: If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to - insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]

 

23

 

 

All payments of the principal of, interest and all other amounts due on this Security in accordance with its terms by the Issuer or in accordance with the Guarantee by the Company or in accordance with the Subsidiary Guarantees by the Subsidiary Guarantors will be made without deduction or withholding for or on account of any present or future taxes or duties of whatever nature imposed or levied by or on behalf of the jurisdiction of incorporation of the Issuer, the Company or the Subsidiary Guarantors, as the case may be (the “Taxing Jurisdictions”), or any authority thereof or therein having the power to tax unless the withholding or deduction of such taxes or duties is required bylaw. In that event, the Issuer, the Company or such Subsidiary Guarantor, as the case may be, will pay to the Holder of this Security such additional amounts as may be necessary in order that every net payment on this Security, after deduction or withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the Taxing Jurisdiction or any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in this Security to be then due and payable; provided, however, that the foregoing obligation to pay additional amounts will not apply if such Holder is liable for such taxes, duties, assessments or governmental charges in respect of this Security by reason of:

 

(a)         such Holder having some present or former connection with the Taxing Jurisdiction other than being a Holder of this Security;

 

(b)         the presentation by such Holder of this Security for payment in Ireland;

 

(c)          the presentation by such Holder of this Security, more than thirty (30) days after the date on which the payment in respect of this Security became due and payable or provided for, whichever is later, except to the extent that the Holder would have been entitled to such amounts if it had presented this Security for payment on any day within such period of thirty (30) days;

 

(d)         any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge; or

 

(e)         any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of this Security to comply with a request of the Issuer, the Company or any Subsidiary Guarantor addressed to the Holder (a) to provide information concerning the nationality, residence or identity of the Holder or such_ beneficial owner or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (a) or (b), is required or imposed by a statute, treaty, regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or

 

(f)          any combination of (a), (b), (c), (d) or (e).

 

Nor will additional amounts be paid with respect to any payment of the principal of, or any interest on, this Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the Issuer’s jurisdiction or the Company’s jurisdiction, as the case may be, to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had-it been the Holder of this Security.

 

24

 

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer, the Company and each Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Issuer, the Company or any Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, no Holder of any Security of this series will have the right to institute any proceeding with respect to the Indenture, the Guarantees endorsed hereon, this Security or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25o in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default-as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

25

 

 

The Securities of this series are issuable only in registered form without coupons in denominations of $___________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Security for registration of transfer or exchange, the Issuer, each Guarantor, the Trustee and any agent of the Issuer, each Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuer, any Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.

 

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

SECTION 204. Form of Legend for Global Securities.

 

Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

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SECTION 205. Guarantees by Guarantors; Form of Guarantees.

 

The Guarantors by their execution of this Indenture hereby agree with each Holder of a Security of each series authenticated and delivered by the Trustee, and with the Trustee on behalf of each such Holder and each such Holder, to be unconditionally bound by the terms and provisions of the Guarantees set forth below and authorize the Issuer, in the name and on behalf of each Guarantor, to confirm such Guarantees to the Holder of each such Security by its execution and delivery of each such Security, with such Guarantees endorsed thereon, authenticated and delivered by the Trustee. When delivered pursuant to the provisions of Section 303 hereof, Guarantees so set forth on the Securities shall bind each Guarantor notwithstanding the fact that the Guaranteed do not bear the signature of each Guarantor.

 

Guarantees to be endorsed on the Securities shall, subject to Section 201, be in substantially the-form set forth below:

 

GUARANTEES

 

JEFFERSON SMURFIT GROUP PUBLIC LIMITED COMPANY, a public limited company duly incorporated under the laws of Ireland (the “Company”), having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland, SMURFIT INTERNATIONAL B.V., a company organized with limited liability under the laws of The Netherlands (“SIBV”), having its registered office at Strawinskylaan 2001, 1077 ZZ Amsterdam, The Netherlands and PACKAGING INTERNATIONAL FINANCE, an unlimited company organized under the laws of Ireland- (“PIF”), having its registered office at IFSC House, Customs House Quay, Dublin 1, Ireland (each of the Company, SIBV and PIF may herein be called a “Guarantor”, and together, the “Guarantors” which terms include any successor Person under the Indenture referred to in the Security upon which these Guarantees are endorsed), for value received, each, jointly and severally, hereby unconditionally guarantees to the Holder of the Security upon which these Guarantees are endorsed and to the Trustee on behalf of each such Holder the due and punctual payment of the principal of, premium, if any, and interest on such Security and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable (subject to any period of grace provided with respect thereto), whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein. In the case of the failure of SMURFIT CAPITAL FUNDING PLC, a public limited company duly incorporated under the laws of Ireland (herein called the “Issuer”, which term includes any successor Person under such Indenture), punctually to make any such payment of principal, premium, if any, or interest or any sinking fund or analogous payment, each Guarantor hereby severally agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Issuer.

 

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Each Guarantor hereby further agrees that all payments of the principal of, interest and all other amounts due on the Securities in accordance with the Guarantees by the Guarantors will be made without deduction or withholding for or on account of any present or future taxes or duties of whatever nature imposed or levied by or on behalf of the jurisdiction of incorporation of the respective Guarantors (the “Taxing Jurisdictions”), or any authority thereof or therein having the power to tax unless the withholding or deduction of such taxes or (duties is required by law. In that event, the relevant Guarantor will pay to the Holder of any Security such additional amounts as may be necessary in order that every net payment on such Security, after deduction or withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the Taxing Jurisdiction or any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in such Security to be then due and payable; provided, however, that the foregoing obligation to pay additional amounts will not apply if such Holder is liable for such taxes, duties, assessments or governmental charges in respect of such Security by reason of:

 

(a)          such Holder having some present or former connection with the Taxing Jurisdiction other than being a Holder of such Security;

 

(b)         the presentation by such Holder of such Security for payment in Ireland;

 

(c)          the presentation by such Holder of such Security more than thirty (30) days after the date on which the payment in respect of such Security become due and payable or provided for, whichever is later, except to the extent that the Holder would have been entitled to such amounts if it had presented such Security for payment on any day within such period of thirty (30) days;

 

(d)         any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge; or

 

(e)          any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of a Security to comply with a request of the relevant Guarantor addressed to the Holder (a) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (a) or (b), is required or imposed by a statute, treaty, regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or

 

(f)          any combination of (a), (b), (c), (d) or (e).

 

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Nor will additional amounts be paid with respect to any payment of the principal of, or any interest on, any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the Issuer’s jurisdiction or the Company’s jurisdiction, as the case may be, to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security.

 

Each Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by,-any invalidity, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Issuer with respect thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of each Guarantor, increase the principal amount of such Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 502 of such Indenture. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of a merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment required under such Security and all demands whatsoever, and covenants that these Guarantees will not be discharged except by payment in full of the principal of, premium, if any, and interest on such Security.

 

Each Guarantee is limited to the maximum amount that will result in the obligations of the relevant Guarantor not constituting a fraudulent conveyance or fraudulent transfer under applicable law.

 

Each Guarantor shall be subrogated to all rights of the Holder of such Security and the Trustee against the Issuer in respect of any amounts paid to such Holder by such Guarantor pursuant to the provisions of these Guarantees, provided, however, that such Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series issued under such Indenture shall have been paid in full.

 

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No reference herein to such Indenture and no provision of these Guarantees or of such Indenture shall alter or impair the guarantee of each Guarantor, which is absolute and unconditional, of the due and punctual payment of the principal of, premium, if any, and interest on, and any sinking fund or analogous payments with respect to, the Security upon which these Guarantees are endorsed.

 

These Guarantees shall not be valid or obligatory for any purpose until the certificate of authentication of such Security shall have been manually executed by or on behalf of the Trustee under such Indenture.

 

All terms used in these Guarantees which are defined in such Indenture shall have the meanings assigned to them in such Indenture.

 

These Guarantees shall be deemed to be contracts made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of the State of New York.

 

Executed and dated the date of the Security on which these Guarantees are endorsed.

 

  JEFFERSON SMURFIT GROUP PUBLIC LIMITED COMPANY
   
  By:  
   
    Name:
   
    Title:
   
  SMURFIT INTERNATIONAL B.V.
   
  By:  
   
    Name:
   
    Title:
   
  PACKAGING INTERNATIONAL FINANCE
   
  By:  
   
    Name:
   
    Title:

 

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SECTION 206. Form of Trustee’s Certificate of Authentication

 

The Trustee’s certificates of authentication shall be in substantially the following form:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

  CHEMICAL BANK
   
  As Trustee
   
  By:                   
   
  Authorized Officer

 

Article Three 

THE SECURITIES

 

SECTION 301. Amount Unlimited; Issuable in Series.

 

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Issuer and, subject to Section 303, set forth, or determined in the manner provided, in an Officer’s Certificate of the Issuer, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,

 

(1)           the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);

 

(2)           any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);

 

(3)           the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;

 

(4)           the date or dates on which the principal of any Securities of the series is payable;

 

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(5)           the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;

 

(6)           the place or places where, subject to the provisions of Section 1002, the principal of and any premium and interest on any Securities of the series shall be payable, Securities of the series may be surrendered for exchange and notices and demands to or upon the Issuer or any Guarantor in respect of any Securities of the series and this Indenture may be served;

 

(7)           the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Issuer or any Guarantor (including the period referred to in Section 1108) and, if other than by a Board Resolution, the manner in-which any election by the Issuer or any Guarantor to redeem the Securities shall be evidenced;

 

(8)           other than with respect to any redemption of Securities pursuant to Section 1108, the obligation, if any, of the Issuer to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Issuer or the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

(9)           if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;

 

(10)         if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;

 

(11)         if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 101;

 

(12)         if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Issuer or any Guarantor or a Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);

 

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(13)         if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;

 

(14)         if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);

 

(15)         the forms of the Securities of the series, if other than the form set forth in Article Two;

 

(16)          if applicable, that the Securities of the series, in whole or in any specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;

 

(17)         if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 204 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;

 

(18)         any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;

 

(19)         any addition to or change in the covenants set forth in Article Ten which applies to Securities of the series;

 

(20)         if additional amounts, pursuant to Section 1004, will be payable by the Issuer or any Guarantor; and

 

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(21)         any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).

 

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or in any such indenture supplemental hereto.

 

If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution of the Issuer, a-copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.

 

SECTION 302. Denominations.

 

The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.

 

SECTION 303. Execution, Authentication, Delivery and Dating.

 

The Securities and each Guarantee shall be executed on behalf of the Issuer or the applicable Guarantor, as the case may be, by its Chairman of the Board, its Vice Chairman of the Board, its President, one of its Vice Presidents, its Treasurer or any Director, and attested by its Secretary, one of its Assistant Secretaries or any Director. The signature of any of these officers on the Securities or the Guarantees may be manual or facsimile. The Securities and the Guarantees may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts of each of the Securities and the Guarantees shall together constitute but one and the same instrument.

 

Securities or Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers or directors of the Issuer or a Guarantor, as the case may be, shall bind the Issuer or such Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or the delivery of such Guarantee or did not hold such offices at the date of such Securities or Guarantee.

 

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At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer, having endorsed thereon Guarantees, to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance with said Issuer Order shall authenticate and deliver such Securities having such Guarantees endorsed thereon. If the form or terms of the Securities of the series and the Guarantees have been established by or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities and Guarantees and accepting the additional responsibilities under this Indenture in relation to such Securities and Guarantees, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,

 

(1)           that such forms have been established in conformity with the provisions of this Indenture;

 

(2)           that such terms have been established in conformity with the provisions of this Indenture; and

 

(3)           that such Securities and Guarantees, when authenticated and delivered by the Trustee and issued by the Issuer and the Guarantors in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer and each Guarantor enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

 

If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

Notwithstanding the provisions of Section 301 and of the second preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Issuer Order and Opinion of Counsel otherwise required pursuant to such second preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

Each Security shall be dated the date of its authentication.

 

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No Security or Guarantee shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially` in the form provided for herein executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security and Guarantee has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

The delivery of any Security by the Trustee, after the authentication thereof hereunder, _shall constitute due delivery of each Guarantee endorsed thereon on behalf of each Guarantor.

 

SECTION 304. Temporary Securities.

 

Pending the preparation of definitive Securities of any series, the Issuer may execute, and upon Issuer Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities and having endorsed thereon the Guarantee of each Guarantor, substantially of the tenor of the definitive Guarantees in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their- execution of such Securities.

 

If temporary Securities of any series are issued, the Issuer will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series ‘Upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount which have endorsed thereon the Guarantee of each Guarantor. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.

 

SECTION, 305. Registration, Registration of Transfer and Exchange.

 

The Issuer shall cause to be kept at the Corporate Trust Office of-the Trustee a register (the register maintained in such office or in any other office or agency of the Issuer in a Place of Payment being herein sometimes referred to as the “Security Register”) in which, subject-to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.

 

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Upon surrender for registration of transfer of any Security of a series at the office or agency of the Issuer in a Place of Payment for that series, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, each such Security having endorsed thereon the Guarantee of each Guarantor.

 

At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, each such Security having endorsed thereon the Guarantee of each Guarantor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer and each Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and Guarantees surrendered upon such registration of transfer or exchange.

 

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

 

No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.

 

If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Issuer shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

 

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The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:

 

(1)           Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

 

(2)           Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the Issuer that it is unwilling or unable to continue as Depositary for such Global Security or (ii) at any time has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security, (C) the Issuer executes and delivers to the Trustee an Officer’s Certificate to the effect that such Global Securities shall be so exchangeable or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301.

 

(3)           Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.

 

(4)           Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.

 

SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.

 

If any mutilated Security is surrendered to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount having endorsed thereon a Guarantee and bearing a number not contemporaneously outstanding.

 

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If there shall be delivered to the Issuer, each Guarantor and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuer, any Guarantor or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount having endorsed thereon Guarantees and bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such Security.

 

Upon the issuance of any new Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Issuer and each Guarantor, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture and the Guarantees equally and proportionately with any and all other Securities of that series duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

SECTION 307. Payment of Interest; Interest Rights Preserved.

 

Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security 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 that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest and, at the option of the Issuer, may be paid by check mailed to the address of the Person entitled thereto as it appears in the Security Register.

 

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Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in Clause (1) or (2) below:

 

(1)           The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same-time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee, after consultation with the Issuer, shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having being so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).

 

(2)           The Issuer may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of each securities exchange on which such Securities may be listed, and upon such notice as may be required by any such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

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SECTION 308. Persons Deemed Owners.

 

Prior to due presentment of a Security for registration of transfer, the Issuer, each Guarantor, the Trustee and any agent of the Issuer, each Guarantor or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 305 and Section 307) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Issuer, any Guarantor, the Trustee nor any agent of the Issuer, any Guarantor or the Trustee shall be affected by notice to the contrary.

 

SECTION 309. Cancellation.

 

All Securities surrendered_ for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Issuer or any Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer or such Guarantor 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 Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by an Issuer Order, and the Trustee will deliver to the Issuer its certificates evidencing such disposition.

 

SECTION 310. Computation of Interest.

 

Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Article Four 

SATISFACTION AND DISCHARGE

 

SECTION 401. Satisfaction and Discharge of Indenture.

 

This Indenture shall upon Issuer Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for and the obligation of the Issuer or any Guarantor to pay any additional amounts as contemplated by Section 1004), and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when

 

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(1)           either

 

(A)        all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer or any Guarantor and thereafter repaid to the Issuer or such Guarantor or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or

 

(B)         all such Securities not theretofore delivered to the Trustee for cancellation

 

(i)          have become due and payable, or

(ii)         will become due and payable at their Stated Maturity within one year, or

(iii)        are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer,

 

and the Issuer or any Guarantor, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee, as trust funds in trust for the purpose, money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(2)           the Issuer or any Guarantor has paid or caused to be paid all other sums payable hereunder by the Issuer; and

 

(3)           the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer and each Guarantor to the Trustee under Section 607, the obligations, if any, of the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.

 

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SECTION 402. Application of Trust Money.

 

Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or any Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.

 

Article Five 

REMEDIES

 

SECTION 501. Events of Defaults.

 

“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(1)          default in the payment of any interest on any Security of that series when it becomes due and payable, continued for a period of 30 New York City Business Days; or

 

(2)           default in the payment of the principal of or any premium on any Security of that series when due continued for three New York City Business Days; or

 

(3)          default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series or beyond any period of grace provided with respect thereto; or

 

(4)          default in the performance, or breach, of any covenant or warranty of the Issuer or any Guarantor in this Indenture or the Guarantees (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of another series of Securities other than that series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Issuer and the Company by the Trustee or to the Issuer, the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

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(5)          any event of default with respect to Indebtedness of the Issuer, the Company or-any Material Subsidiary, whether such indebtedness now exists or shall hereafter be created, shall occur and shall result in such Indebtedness in principal amount in excess of $35,000,000 (or its equivalent in another currency), pursuant to the terms of the instrument or instruments under which it was issued, becoming or being declared due and payable prior to the date on which it would otherwise become due and payable; or

 

(6)          the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Issuer, the Company or any*Material Subsidiary in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Issuer, the Guarantor or any Material Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking the involuntary reorganization,-arrangement, adjustment or composition of or in respect of the Issuer, the Company or any Material Subsidiary under any applicable law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer, the Company or of any Material Subsidiary or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or

 

(7)          the commencement by the Issuer, the Company or any Material Subsidiary of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Issuer, the Company or any Material Subsidiary in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against any one of them, or the filing by any one of them of a petition or answer or consent seeking reorganization or relief under any applicable law, or the consent by any one of them to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer, the Company or any Material Subsidiary or of any substantial part of the property of any one of them, or the making by any one of them of an assignment for the benefit of creditors, or the admission by any one of them in writing or by facsimile of its inability to pay its debts generally as they become due, or the taking of corporate action by the Issuer, the Company or any Material Subsidiary in furtherance of any such action; or

 

(8)          any other Event of Default provided with respect to Securities of that series.

 

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SECTION 502. Acceleration of Maturity; Rescission and Annulment.

 

If an Event of Default (other than an Event of Default specified in Section 501(6) or 501(7) with respect to the Issuer or any Guarantor hereunder) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Issuer and the Guarantors (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 501(6) or 501(7) with respect to the Issuer or any Guarantor hereunder occurs with respect to Securities of any series at the time Outstanding, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.

 

At any time after such a declaration of acceleration with respect to-Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Issuer, each Guarantor and the Trustee, may rescind and annul such declaration and its consequences if

 

(1)          the Issuer or any Guarantor has paid or deposited with the Trustee a sum sufficient to pay

 

(A)        all overdue interest on all Securities of that series,

 

(B)         the principal of (and premium, if any, on) any Securities .of that series which have become due otherwise than by such declaration of acceleration and any interest accrued thereon at the rate or rates prescribed therefor in such Securities,

 

(C)         to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and

 

(D)        all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel;

 

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and

 

(2)          all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.

 

No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.

 

The Issuer covenants that if

 

(1)          default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 New York City Business days, or

 

(2)          default is made in the payment of the principal of (or premium, if any, on) any Security and such default continues for three New York City Business Days,

 

the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, 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, its agent and counsel.

 

If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

SECTION 504. Trustee May File Proofs of Claim.

 

In case of any judicial proceeding relative to the Issuer, any Guarantor or any other obligor upon the Securities, or the property of the Issuer, any Guarantor or other obligor or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each 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 it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.

 

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No provision of this Indenture 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 Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

 

SECTION 505. Trustee May Enforce Claims Without Possession of Securities.

 

All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

SECTION 506. Application of Money Collected.

 

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in the case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

FIRST: To the payment of all amounts due the Trustee under Section 607;

 

SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and

 

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THIRD: To the payment of the balance, if any, to the Issuer or any other Person or Persons, including any Guarantor, legally entitled thereto.

 

SECTION 507. Limitation on Suits.

 

No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Guarantees, the Securities or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

 

(1)          such Holder has previously given written notice to the Trustee of a continuing Event of Default-with respect to the Securities of that series specifying such Event of Default and stating that such notice is a “Notice of Default” hereunder;

 

(2)          the Holders of not less than 25t in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

(3)          such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;

 

(4)          the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(5)          no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;

 

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.

 

SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.

 

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

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SECTION 509. Restoration of Rights and Remedies.

 

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

 

SECTION 510. Rights and Remedies Cumulative.

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

SECTION 511. Delay or Omission Not Waiver.

 

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

 

SECTION 512. Control by Holders.

 

The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that

 

(1)          such direction shall not be in conflict with any rule of law or with this Indenture and shall not involve the Trustee in personal liability, and

 

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(2)          the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

SECTION 513. Waiver of Past Defaults.

 

The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may, by written notice to the Trustee, on behalf of the Holders of all of the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default

 

(1)          in the payment of the principal of or any premium or interest on any Security of such series, or

 

(2)          in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

 

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 the Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

SECTION 514. 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, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court or require such an undertaking or to make such an assessment in any suit instituted by the Issuer or any Guarantor, in any suit instituted by the Trustee, in any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or in any suit instituted by any Holder for the enforcement of the payment of the principal of or any premium or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).

 

SECTION 515. Waiver of Usury, Stay or Extension Laws.

 

The Issuer and each Guarantor hereby covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer and each Guarantor hereby (to the extent that it may lawfully do so) expressly waives all benefit or advantage of any such law and covenants that it will not 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 had been enacted.

 

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Article Six 

THE TRUSTEE

 

SECTION 601. Certain Duties and Responsibilities.

 

The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such right or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

 

SECTION 602. Notice of Defaults.

 

If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.

 

SECTION 603. Certain Rights of Trustee.

 

Subject to the provisions of Section 601:

 

(1)          the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(2)          any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by a Issuer Request or Issuer Order, as the case may be, and any resolution of the Board of Directors of the Issuer or any Guarantor shall be sufficiently evidenced by a Board Resolution of the Issuer or such Guarantor, as the case may be;

 

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(3)          whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

 

(4)          the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder and in good faith and in reliance thereon;

 

(5)          the Trustee shall be under no obligation to exercise any of the rights or powers vested in it-by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(6)          the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer or each Guarantor, personally or by agent or attorney, provided, that the Trustee shall not be entitled to such information which the Issuer or any Guarantor is prevented from disclosing as a matter of law or contract; and

 

(7)          the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.

 

SECTION 604. Not Responsible for Recitals or Issuance of Securities.

 

The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer or each Guarantor, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Securities or the proceeds thereof. The Trustee shall not be _charged with knowledge of any Event of Default hereunder unless (i) a Responsible Officer of the Trustee assigned to its Corporate Trustee Administration Department shall have actual knowledge thereof or (ii) the Trustee shall have received written notice thereof in accordance with Section 105 from the Issuer, any Guarantor or any Holder.

 

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SECTION 605. May Hold Securities.

 

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Issuer or each Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Issuer and the Guarantors with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

 

SECTION 606. Money Held in Trust.

 

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer or any Guarantor, as the case may be.

 

SECTION 607. Compensation and Reimbursement.

 

The Issuer and each of the Guarantors jointly and severally agree:

 

(1)          to pay to the Trustee from time to time such compensation as may be agreed with the Company for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

(2)          except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel) except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

 

(3)          to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise of performance of any of its powers or duties hereunder.

 

As security for the performance of the obligations of the Issuer and the Guarantors under this Section the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, premium, if any, or interest, if any, on particular Securities.

 

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SECTION 608. Conflicting Interests.

 

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.

 

SECTION 609. Corporate Trustee Required; Eligibility.

 

There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, and has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust Office in the Borough of Manhattan, The City of New York, New York. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

SECTION 610. Resignation and Removal; Appointment of Successor.

 

No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.

 

The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Issuer and the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a. successor Trustee with respect to the Securities of such series.

 

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The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Issuer and the Guarantors.

 

If at any time:

 

(1)          the Trustee shall fail to comply with Section 608 after written request therefor by the Issuer or any Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

(2)          the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Issuer or any Guarantor or by any such Holder, or

 

(3)          the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its, property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then in any such case, (A) the Issuer by a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Issuer, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more of all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Issuer and the Guarantors and the retiring. Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Issuer or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others - similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

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The Issuer shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

SECTION 611. Acceptance of Appointment by Successor.

 

In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuer, to the Guarantors and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuer, any Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantors, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such success Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Issuer, any Guarantor or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

 

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Upon request of any such successor Trustee, the Issuer and the Guarantors shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.

 

No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

 

SECTION 612. Merger, Conversion, Consolidation or Succession to Business.

 

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee, hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

SECTION 613. Preferential Collection of Claims Against Issuer or Any Guarantor.

 

If and when the Trustee shall be or become a creditor of the Issuer or any Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Issuer or such Guarantor (or any such other obligor).

 

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SECTION 614. Appointment of Authenticating Agent.

 

The Trustee may appoint an Authenticating Agent or Agents-with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities 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. Wherever reference is made in this Indenture to the authentication and delivery of Securities 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. Each Authenticating Agent shall be acceptable to the Issuer 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 not less than $50,000,000 and subject to supervision to examination by Federal or State authority. If such Authenticating Agent publishes 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, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

 

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 such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

 

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Issuer. 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 Issuer. 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, -the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become invested 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.

 

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Except with respect to Authenticating Agents appointed at the request of the Issuer, the Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607.

 

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned indenture.

 

  CHEMICAL BANK
   
  As Trustee
   
  By:                       
   
  As Authenticating Agent
   
  By:  
   
  Authorized Officer

 

If all of the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Issuer wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested by the Issuer in writing (which writing need not comply with Section 102 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section and such procedures as shall be acceptable to the Trustee, an Authenticating Agent having an office in a Place of Payment designated by the Issuer with respect of such series of Securities.

 

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Article Seven 

HOLDERS LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARANTORS

 

SECTION 701. Issuer and Guarantors to Furnish Trustee Names and Addresses of Holders.

 

The Issuer and the Guarantors will furnish or cause to be furnished to the Trustee

 

(1)          semi-annually, not later than 15 days after each Regular Record Date in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of such Regular Record Date, and

 

(2)          at such other times as the Trustee may request in writing within 30 days after the receipt-by the Issuer or any Guarantor of any such request, a list of similar form and content as of the date not more than 15 days prior to the time such list is furnished;

 

excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.

 

SECTION 702. Preservation of Information; Communications to Holders.

 

The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.

 

The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.

 

Every Holder of Securities, by receiving and holding the same, agrees with the Issuer, the Guarantors and the Trustee that neither the Issuer, any Guarantor nor the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.

 

SECTION 703. Reports by Trustee.

 

The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.

 

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Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted no later than July - 15 in each calendar year, commencing in July 15, 1996, each such report to be as of the May 15 prior thereto.

 

A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission, with the Issuer and with the Guarantors. The Company will notify the Trustee in writing or by facsimile when any Securities are listed on any stock exchange.

 

SECTION 704. Reports by Issuer and Guarantors.

 

The Issuer and the Guarantors shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission.

 

Article Eight 

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

SECTION 801. Issuer or Any Guarantor May Consolidate, Etc., On Certain Terms.

 

The Issuer or any Guarantor shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:

 

(1)          the Person formed by such consolidation or into which the Issuer or such Guarantor is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Issuer or such Guarantor substantially as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, in case of the Issuer, the due and punctual payment of the principal of and any premium and interest (including all additional amounts, if any payable pursuant to. Section 1004 and subsection (3) below) on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Issuer to be performed or observed and, in the case of any Guarantor, the due and punctual performance of the relevant Guarantee and the performance of every covenant of this Indenture on the part of such Guarantor to be performed or observed;

 

(2)          immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer or any Guarantor as a result of such transaction as having been incurred by the Issuer or such Guarantor at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;

 

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(3)          the Person formed by such consolidation or into which any Guarantor is merged or to whom the Issuer or any Guarantor has conveyed, transferred or leased its properties or assets substantially as an entirety agrees to indemnify the Holder of each Security against (a) any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease; and (b) any costs or expenses of the act of such consolidation, merger, conveyance, transfer or lease;

 

(4)          if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or any Guarantor would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this Indenture, the Issuer, such Guarantor or such successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and

 

(5)          the Issuer or any Guarantor, as the case may be, has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

 

SECTION 802. Successor Substituted.

 

Upon any consolidation of the Issuer or any Guarantor with, or merger of the Issuer or any Guarantor into, any other Person or any conveyance, transfer or lease of the properties and assets of the Issuer or any Guarantor substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Issuer or such Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or such Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Issuer or such Guarantor herein, as the case may be, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

 

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SECTION 803. Assumption by Guarantor or Subsidiary of Issuer’s Obligations.

 

Any Guarantor or any Subsidiary of any Guarantor may assume the obligations of the Issuer (or any Person which shall have previously assumed the obligations of the Issuer) for the due and punctual payment of the principal of (and premium, if any), interest on and any other payments with respect to the Securities and the performance of every covenant of this Indenture and the Securities on the part of the Issuer to be performed or observed, provided that:

 

(1)          Such Guarantor or such Subsidiary, as the case may be, shall expressly assume such obligations by an indenture supplemental hereto, in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee and if such Subsidiary or any Guarantor assumes such obligations, each Guarantor or each other Guarantor, as the case may be, shall, by such supplemental indenture, confirm that its Guarantees shall apply to such Subsidiary’s or Guarantor’s obligations under the Securities and this Indenture, as modified by such supplemental indenture;

 

(2)          Such Guarantor or such Subsidiary, as the case may be, shall agree in such supplemental indenture, to the extent provided in the Securities and subject to the limitations and exceptions set forth below, that if any deduction or withholding for any taxes, assessments or other. governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which such Guarantor or such Subsidiary is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by such Guarantor or such Subsidiary, as the case may be, to a Holder, such Guarantor or such Subsidiary, as the case may be, will pay to the Holder such additional amounts as may be necessary in order that the net amounts paid to the Holder of such Security, after such deduction or withholding, shall not be less than the amount specified in such Security to be then due and payable; provided, however, that the foregoing obligation to pay additional amounts will not apply if such Holder is liable for such taxes, duties, assessments or governmental charges in respect of such Security by reason of:

 

(a)          such Holder having some present or former connection with the Taxing Jurisdiction other than being a Holder of such Security;

 

(b)          the presentation for payment in Ireland;

 

(c)          the presentation more than thirty (30) days payment in respect of such or provided for, whichever that the Holder would have by such Holder of such Security by such Holder of such Security, after the date on which the Security became due and payable is later, except to the extent been entitled to such amounts if it had presented this Security for payment on any day within such period of thirty (30) days;

 

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(d)          any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge; or

 

(e)          any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of such Security to comply with a request of such Guarantor or such Subsidiary addressed to the Holder (a) to provide information -concerning the nationality, residence or identity of the Holder or such beneficial owner or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (a) or (b), is required or imposed by a statute, treaty, regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or

 

(f)           any combination of (a), (b), (c), (d) or (e).

 

Nor will additional amounts be paid with respect to any payment of the principal of, or any interest on, such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of such Guarantor’s jurisdiction or such Subsidiary’s jurisdiction, as the case may be, to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of this Security.

 

Upon any such assumption, such Guarantor or such Subsidiary shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such Guarantor or such Subsidiary had been named as the “Issuer” herein, and the Person named as the “Issuer” in the first paragraph of this instrument or any successor Person which shall theretofore have become such in the manner prescribed in this Article shall be released from its liability as obligor upon the Securities.

 

Article Nine 

SUPPLEMENTAL INDENTURES

 

SECTION 901. Supplemental Indentures Without Consent of Holders.

 

Without the consent of any Holders, the Issuer, when authorized by a Board Resolution, each Guarantor, when-authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

 

(1)          to evidence the succession of another Person to the Issuer or any Guarantor and the assumption by any such successor of the covenants of the Issuer or of such Guarantor herein and in the Securities or Guarantees; or

 

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(2)          to add to the covenants of the Issuer or the Guarantors for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Issuer or the Guarantors; or

 

(3)          to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or

 

(4)          to add to or change the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; provided that any such action shall not adversely affect the interests of the Holders of any Securities of any series in any material respect; or

 

(5)          to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (A) shall neither =(i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or

 

(6)          to secure the Securities; or

 

(7)          to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or

 

(8)          to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administrative of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or

 

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(9)          to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (9) shall not adversely affect the interests of the Holders of Securities of any series in any material respect.

 

SECTION 902. Supplemental Indentures With Consent of Holders.

 

With the consent of the Holders of not less than a majority in principal amount of the-Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Issuer, the Guarantors and the Trustee, the Issuer, when authorized by a Board Resolution, each Guarantor, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purposes of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

 

(1)          change the Stated Maturity of the principal of, or any instalment of principal of or interest on, any Security, or reduce the principal amount thereof or the interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Issuer or the Guarantors to pay additional amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section’502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or

 

(2)          reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

 

(3)          change any obligation of the Issuer or the Guarantors to maintain an office or agency in the places and for the purposes specified in Section 1002, or

 

(4)          modify any of the provisions of this Section, Section 513 or Section 1011, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” , and concomitant changes in this Section and Section 1011, or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(8), or

 

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(5)          modify or affect in any manner adverse to the interests of the Holders of any Securities the terms and conditions of the obligations of the Guarantors pursuant to the Guarantees in respect of the due and punctual payment of the principal of the Securities (and premium, if any) and interest, if any, thereon or any sinking fund payments provided in respect thereof.

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

 

SECTION 903. Execution of Supplemental Indentures.

 

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

SECTION 904. Effect of, Supplemental Indentures.

 

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

SECTION 905. Conformity with Trust Indenture Act.

 

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.

 

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SECTION 906. Reference in Securities to Supplemental Indentures.

 

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Issuer and the Trustee as to any matter provided for in such supplemental indenture. If the Issuer and the Guarantors shall so determine, new Securities of any series so modified as to conform, in the opinion of ,the Trustee and the Issuer and the Guarantors, to any such supplemental indenture may be prepared and executed by the Issuer, the Guarantees of the Guarantors may be endorsed thereon and such Securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

Article Ten 

COVENANTS

 

SECTION 1001. Payment of Principal, Premium and Interest.

 

The Issuer covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in immediately available funds in accordance with the terms of the Securities and this Indenture.

 

SECTION 1002. Maintenance of Office or Agency.

 

The Issuer will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuer in respect of the Securities of that series and this Indenture may be served.

 

The Guarantors will each maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon each Guarantor in respect of Securities of any series and this Indenture may be served.

 

The Issuer and the Guarantors 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 Issuer and the Guarantors shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer and the Guarantors each hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

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

 

SECTION 1003. Money for Securities Payments to be Held in Trust.

 

If the Issuer or any Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities, it will (if, in the case of such Guarantor, required by its Guarantee), on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action of failure so to act.

 

Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal of or any premium of interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its action or failure so to act.

 

The Issuer will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Issuer (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.

 

The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

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Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer or any Guarantor, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer on Issuer Request, or (if then held by the Issuer or any Guarantor) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer or a Guarantor for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer or such Guarantor 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 expense of the Issuer cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.

 

SECTION 1004. Additional Amounts.

 

If the Securities of a series provide for the payment of additional amounts, the Issuer or any Guarantor, as the case may be, will agree that all payments of the principal of, interest and all other-amounts due on the Securities in accordance with their terms by the Issuer or in accordance with the Guarantee by the Company or in accordance with the Subsidiary Guarantees by the Subsidiary Guarantors will be made without deduction or withholding for or on account of any present or future taxes or duties of whatever nature imposed or levied by or on behalf of the jurisdiction of incorporation of the Issuer, the Company or the Subsidiary Guarantors, as the case may be (the “Taxing Jurisdictions”), or any authority thereof or therein having the power to tax unless the withholding or deduction of such taxes or duties is required by law. In that event, the Issuer, the Company or such Subsidiary Guarantor, as the case may be, will pay to the Holder of any Security such additional amounts as may be necessary in order that every net payment on such Security, after deduction or withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the Taxing Jurisdiction or any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in such Security to be then due and payable; provided, however, that the foregoing obligation to pay additional amounts will not apply if such Holder is liable for such taxes, duties, assessments or governmental charges in respect of such Security by reason of:

 

(a)          such Holder having some present or former connection with the Taxing Jurisdiction other than being a Holder of such Security;

 

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(b)          the presentation by such Holder of such Security for payment in Ireland;

 

(c)          the presentation by such Holder of such Security, more than thirty (30) days after the date on which the payment in respect of such Security became due and payable or provided for, whichever is later, except to the extent that the Holder would have been entitled to such amounts if it had presented such Security for payment on any day within such period of thirty (30) days;

 

(d)          any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge; or

 

(e)          any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of a Security to comply with a request of the Issuer, the Company or any Subsidiary Guarantor addressed to the Holder (a) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (a) or (b), is required or imposed by a statute, treaty, regulation or-administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or

 

(f)           any combination of (a), (b), (c), (d) or (e).

 

Nor will additional amounts be paid with respect to any payment of the principal of, or any interest on, any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the. Issuer’s jurisdiction or the Company’s jurisdiction, as the case may be, to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security.

 

Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made.

 

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If the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Issuer will furnish the Trustee and the Issuer’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series and the related Guarantees shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series and the related Guarantees. If any such withholding may be required, then such Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer or the applicable Guarantor, as the case may be, will pay to the Trustee or such Paying Agent or Paying Agents the additional amounts required by this Section. The Issuer and the Guarantors, jointly and severally, covenant to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section.

 

SECTION 1005. Statement by Officers as to Default.

 

The Issuer and each Guarantor will so long as any of the Securities are outstanding deliver to the Trustee, within 180 days after the end of each fiscal year of the Issuer ending after the date hereof, an Officer’s Certificate, stating whether or not to the best knowledge of the signer thereof the Issuer or any Guarantor, as the case may be, is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Issuer or any Guarantor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.

 

SECTION 1006. Existence.

 

Subject to Article Eight, the Issuer and each Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Issuer and each Guarantor shall not be required to preserve any such right or franchise if its respective Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer or such Guarantor, as the case may be, and that the loss thereof is not disadvantageous in any material respect to the Holders.

 

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SECTION 1007. Maintenance of Properties.

 

The Issuer and each Guarantor will cause all properties used or useful in the conduct of its business or of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of_ the Issuer or any Guarantor, as the case may be, may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent the Issuer or any Guarantor, as the case may be, from discontinuing the operation or maintenance of any of such properties if such discontinuance is, in the judgment of the Issuer or such Guarantor; as the case may be, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders.

 

SECTION 1008. Payment of Taxes and Other Claims.

 

The Issuer and each Guarantor will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied and imposed upon the Issuer, any Guarantor or any Subsidiary or upon the income, profits and property of the Issuer, any Guarantor or any Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Issuer, a Guarantor or any Subsidiary; provided, however, that the Issuer or any such Guarantor or any such Subsidiary, as the case may be, shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.

 

SECTION 1009. Limitations on Liens.

 

For so long as Securities remain Outstanding under this Indenture, the Company will not, and the Company will procure that no member of the Restricted Group will incur any Indebtedness which is secured with a Lien on any Principal Property unless contemporaneously therewith effective provision is made to secure the Securities equally and ratably with the Indebtedness such Lien is securing; except for:

 

(1)          Liens existing as of the date hereof;

 

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(2)          Liens securing Indebtedness of any corporation existing at the time such corporation becomes a Restricted Subsidiary or at the time such corporation merges into or consolidates with a Restricted Subsidiary or at the time of sale, lease or other disposition of all or substantially all of the properties of such corporation to a Restricted Subsidiary; provided that (x) such -Indebtedness is outstanding on the date such corporation so becomes or merges into or consolidates with or disposes of such ‘properties to a Restricted Subsidiary (or such corporation is at such time contractually bound, in writing, to incur such Liens securing Indebtedness), (y) such Liens securing Indebtedness have not been (or are not being) incurred, extended or renewed in contemplation of such corporation so becoming or merging into or consolidating with or disposing of such properties to a Restricted Subsidiary and (z) such Liens securing Indebtedness shall not be permitted pursuant to this paragraph (2) to the extent that they are extended to any assets other than those assets of such corporation to which such Liens extended prior to such corporation becoming or merging into or consolidating with or disposing of such properties to a Restricted Subsidiary;

 

(3)          Liens on real or personal property acquired (whether directly or through the acquisition of stock of a corporation owning such property) or constructed after the date hereof (“After-Acquired Property”), or Liens on improvements to After-Acquired Property after the date hereof, which Liens are given to secure the payment of the purchase price or cost incurred in connection with such acquisition, construction or improvement including, without limitation, (x) a security interest granted to or title retention reserved by the seller of the property to secure the purchase price owing to the seller or (y) a security interest the proceeds of which were used to pay for the purchase, .construction or improvement of the property; provided that (i) such Liens shall be permitted (pursuant to this paragraph (3)) to the extent to which they shall attach to the assets acquired, constructed or improved, (ii) the Liens shall have been created or incurred not later than 270 days after the date of acquisition or the date of completion of the construction or improvements, as the case may be, and (iii) the amount secured by such Liens does not exceed the lesser of (x) the fair market value of the property so acquired, constructed or improved and (y) the purchase price of the property so acquired or the cost of the construction or improvements (including any financing or refinancing costs), as the case may be;

 

(4)          Liens in favor of any member of the Restricted Group;

 

(5)          Liens securing Indebtedness which was previously permitted to be secured pursuant to the foregoing provisions and which has been extended, renewed or replaced to the extent that (x) the outstanding principal amount of Indebtedness so secured is not increased, (y) such Liens apply to the same property which was theretofore subject thereto, and (z) no Default or Event of Default has occurred and is continuing.

 

In addition to the foregoing clauses (1) through (5), the Issuer or the Guarantors may create, incur or assume any Lien upon any of their respective property or assets in order to secure Indebtedness; provided that at the time of such creation, incurrence or assumption and after giving effect thereto (i) Indebtedness of the Restricted Group secured by Liens other than any Liens referred to in clauses (1) through (5) above and (ii) Attributable Debt with respect to all Sale and Leaseback Transactions does not exceed 15k of Consolidated Net Tangible Assets.

 

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SECTION 1010. Limitations on Sales and Leasebacks.

 

For so long as Securities are Outstanding under this Indenture, the Company will not, and the Company will procure that no member of the Restricted Group will, enter into a Sale and Leaseback Transaction with respect to a Principal Property after the date hereof, except for Sale and Leaseback Transactions: (i) for the lease of property for a period not exceeding twelve months; (ii) with respect to which a member of the Restricted Group would be entitled to incur Indebtedness secured by a Lien on the property to be leased without equally and ratably securing the Securities as described in Section 1009; (iii) relating to certain real or personal property acquired, constructed or improved after the date hereof and which was entered into to finance such acquisition, construction or improvement; or (iv) in respect of which the proceeds are at least equal to the fair market value of the property sold and the proceeds are (a) invested in the capital assets of the Restricted Group, (b) used to repay Indebtedness of the Restricted Group or (c) used to defease certain obligations of such member of the Restricted Group as lessee under leases capitalized in accordance with generally accepted accounting principles; provided such obligations are defeased within 12 months of such member of the Restricted Group entering into such lease.

 

Notwithstanding the foregoing, the Issuer, the Company or any of the Restricted Subsidiaries may enter into Sale and Leaseback Transactions in addition to those permitted above, provided that at the time of entering into such transactions and after giving effect thereto, Attributable Debt with respect to all such transactions plus all Indebtedness secured by Liens pursuant to the final paragraph of Section 1009 above does not exceed 15% of Consolidated Net Tangible Assets.

 

SECTION 1011. Waiver of Certain Covenants.

 

Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Issuer and each Guarantor may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(19), 901(2) or 901(6) for the benefit of the Holders of such series or in any of Sections 1004, 1009 or 1010 if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuer and each Guarantor and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

 

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Article Eleven 

REDEMPTION OF SECURITIES

 

SECTION 1101. Applicability of Article.

 

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article.

 

SECTION 1102. Election to Redeem; Notice to Trustee.

 

The election of the Issuer to redeem any Securities shall be evidenced.by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Issuer of less than all the Securities of any series (including any such redemption affecting only a single Security), the Issuer shall, at least 60 days prior to the Redemption Date fixed by the Issuer (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable of the tenor of the Securities to be redeemed. In the case of any redemption of the Securities (a) prior to the expiration of any restriction on such redemption provided in-the terms of such Securities or elsewhere in this Indenture or (b) pursuant to an election of the Issuer which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.

 

SECTION 1103. Selection by Trustee of Securities to Be Redeemed.

 

If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.

 

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The Trustee shall promptly notify the Issuer in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.

 

The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.

 

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.

 

SECTION 1104. Notice of Redemption.

 

Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.

 

All notices of redemption shall state:

 

(1)          the Redemption Date,

 

(2)          the Redemption Price,

 

(3)          if less than all the Outstanding Securities of any series and of a specified tenor consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series and of a specified tenor consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,

 

(4)          that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable that interest thereon will cease to accrue on and after said date,

 

(5)          the place or places where each such Security is to be surrendered for payment of the Redemption Price, and

 

(6)          that the redemption is for a sinking fund, if such is the case.

 

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Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at Issuer Request, by the Trustee in the name and at the expense of the .Issuer and shall be irrevocable.

 

SECTION 1105. Deposit of Redemption Price.

 

On or prior to any Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer or any Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on the date.

 

SECTION 1106. Securities Payable on Redemption Date.

 

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Issuer at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 301, instalments of interest on Securities whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

SECTION 1107. Securities Redeemed in Part.

 

Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

 

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SECTION 1108. Optional Redemption Due to Changes in Tax Treatment.

 

Each series of Securities may be redeemed at the option of the Issuer or the Company (or any Subsidiary which has assumed the Issuer’s obligations pursuant to Section 803 of this Indenture) in whole but not in part at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date) at a redemption price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities) if, as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Issuer, the Company or any Subsidiary Guarantor (or, in the case of any Subsidiary which has assumed the Company’s obligations pursuant to Section 803 of this Indenture, such Subsidiary) is incorporated or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction (or such political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the date specified for such series pursuant to Section 301(7) (or in the case of an assumption of the Issuer’s obligations by any Subsidiary pursuant to Section 803, becomes effective after the date. of such assumption), (i) the Issuer, the Company or any Subsidiary Guarantor (or such Subsidiary) is or would be required on the next succeeding Interest Payment Date to pay additional amounts with respect to the Securities or (ii) the Company or any Subsidiary Guarantor is or would be required to deduct or withhold tax on any payment to the Issuer (or such Subsidiary) to enable the Issuer (or such Subsidiary) to make any payment of principal, premium, if any, or interest in respect of the Securities and the payment of such additional amounts in the case of (i) above, or such deduction or withholding in the case of (ii) above, cannot be avoided by the use of any reasonable measures available to the Issuer, the Company, the relevant Subsidiary Guarantor or such Subsidiary. Prior to the publication any notice of redemption of such Securities pursuant to this Indenture, the Issuer, the Company (or such Subsidiary or Subsidiary Guarantor) will deliver to the Trustee (i) an opinion of independent tax counsel of recognized standing in the relevant jurisdiction to the effect that the Issuer, the Company or the relevant Subsidiary Guarantor (or such Subsidiary) would be required to pay additional amounts on the next payment in respect of such Securities and (ii) an Officer’s Certificate to the effect that such obligation cannot be avoided by the Issuer, the Company or the relevant Subsidiary Guarantor (or such Subsidiary), as the case may be, taking reasonable measures available to it, and the Trustee shall be entitled to accept such opinion as sufficient evidence of the satisfaction of the condition precedent set out above in which event it shall be conclusive and binding on the Holders of such Securities.

 

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Further, if pursuant to Section 801(3) of this Indenture, a Person has been or would be required to pay any additional amounts as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or any political subdivision thereof or therein) in which such Person may be incorporated or organised or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction is a party which change, execution or amendment becomes effective on or after the effective date of such consolidation, merger, conveyance, transfer or lease and such obligation cannot be avoided by the use of any reasonable measures available to such Person, each series of Securities may be redeemed at the option of such Person in whole, but not in part, at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date), at a redemption price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities). Prior to the giving of notice of redemption of such Securities pursuant to this Indenture, such Person will deliver to the Trustee (i) an opinion of independent tax counsel of recognized standing in the relevant jurisdiction to the effect that the Issuer, the Company or the relevant Subsidiary Guarantor would be required to pay additional amounts on the next payment in respect of such Securities and (ii) an Officer’s Certificate to the effect that such obligation cannot be avoided by the Issuer, the Guarantor or the relevant Subsidiary Guarantor, as the case may be, taking reasonable measures available to it, and the Trustee shall be entitled to accept such opinion as sufficient evidence of the satisfaction of the condition precedent set out above in which event it shall be conclusive and binding on the Holders of such Securities.

 

Article Twelve 

SINKING FUNDS

 

SECTION 1201. Applicability of Article.

 

The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities.

 

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.

 

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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.

 

The Issuer (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Issuer pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

 

SECTION 1203. Redemption of Securities for Sinking Fund.

 

Not less than 60 days prior to each sinking fund payment date for any Securities, the Issuer will deliver to the Trustee an Officer’s Certificate specifying the amounts of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and stating the basis for such credit and that such Securities have not previously been so credited and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuer in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

 

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Article Thirteen
DEFEASANCE AND COVENANT DEFEASANCE

 

SECTION 1301. Option of Issuer and Guarantors to Effect Defeasance or Covenant Defeasance.

 

The Issuer or any Guarantor may elect, at its option at any time, to have Section 1302 or Section 1303 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.

 

SECTION 1302. Defeasance and Discharge.

 

Upon the exercise by either the Issuer or any Guarantor of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Issuer and the Guarantors shall be deemed to have been discharged from their respective obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Defeasance”). For this. purpose, such Defeasance means that the Issuer and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all their other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Issuer and the Guarantors, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the obligations of the Issuer and the Guarantors with respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of additional amounts, if any, on such Securities as contemplated by Section 1004 and with respect to the Trustee under Section 607, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Issuer or any Guarantor may exercise its option (if any) to have Section 1303 applied to such Securities.

 

SECTION 1303. Covenant Defeasance.

 

Upon exercise by either the Issuer or any Guarantor of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (1) the Issuer and the Guarantors shall be released from their obligations under Section 801(4), Sections 1006 through 1010, inclusive, and any covenants provided pursuant to Section 301(19), 901(2) or 901(6) for the benefit of the Holders of such Securities, and (2) the occurrence of any event-specified in Sections 501(4) (with respect to any of Section 801(4), Sections 1006 through 1010, inclusive, and any such covenants provided pursuant to Section 301(19), 901(2) or 901(6)) and 501(8) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Issuer and each Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth-in any such specified Section (to the extent so specified in the case of Section 501(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other-provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.

 

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SECTION 1304. Conditions to Defeasance or Covenant Defeasance.

 

The following shall be the conditions to the application of Section 1302 or Section 1303 to any Securities or any series of Securities, as the case may be:

 

(1)          The Issuer or a Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, (i) the principal of and any premium and interest on such Securities on the respective Stated Maturities or on any Redemption Date established pursuant to Clause (11) below and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the day on which such payments are due and payable, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) or trust company as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank or trust company for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

 

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(2)          In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Issuer or the applicable Guarantor shall have delivered to the Trustee either (i) an Opinion of Counsel stating that (A) the Issuer or such Guarantor has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case 00 or (B) or (ii) a ruling has been received from or published by the United States Internal Revenue Service to the effect that the Holders of such Securities will not recognize gain or loss for federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.

 

(3)          In the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Issuer or Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.

 

(4)          The Issuer or applicable Guarantor shall have delivered to the Trustee an Officer’s Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.

 

(5)          No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(6) and (7), at any time on or prior to the 90th day after the date of such deposit (or such later date as may be necessary to prevent such deposit being .deemed a voidable preference under the law of the jurisdiction of the Person making the deposit pursuant hereto) (it being understood that this condition shall not be deemed satisfied until after such 90th day or such later date).

 

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(6)          Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).

 

(7)          Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Issuer or any Guarantor is a party or by which it is bound.

 

(8)          Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.

 

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

 

(10)          Notwithstanding any other provisions of this Section, such Defeasance or Covenant Defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations in connection therewith pursuant to Section 301.

 

(11)          If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.

 

SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.

 

Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1306,the Trustee and any other trustee are referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Issuer or any Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in -respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.

 

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The Issuer or the applicable Guarantor shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant. to Section 1304 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 -Outstanding Securities.

 

Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer or the applicable Guarantor from time to time upon Issuer Request any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accounts expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.

 

SECTION 1306. Reinstatement.

 

If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Issuer and the Guarantors have been discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities in accordance with this Article; provided, however, that if the Issuer or any Guarantor makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Issuer and such Guarantor shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.

 

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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.

 

    SMURFIT CAPITAL FUNDING PLC  
     
  By: /s/ [Signatory]
      Director
     
Attest:    
/s/ [Signatory]    
Secretary    
    JEFFERSON SMURFIT GROUP PUBLIC LIMITED COMPANY  
     
    By: /s/ [Signatory]
      Secretary
     
Attest:    
/s/ [Signatory]    
Director    
    SMURFIT INTERNATIONAL B.V.
     
    By: /s/ [Signatory]
      Managing Director
Attest:  
/s/ [Signatory]    
Rokin Corporate Services B.V.      

 

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    PACKAGING INTERNATIONAL FINANCE  
     
    By: /s/ [Signatory]
             Director
       
Attest:      
/s/ [Signatory]    
Director    
    CHEMICAL BANK  
     
    By: /s/ [Signatory]
             Vice President
       
Attest:      
/s/ [Signatory]    
Senior Trust Officer    

 

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STATE OF NEW YORK )

) ss.:

COUNTY OF NEW YORK )

 

On the ___ day of November, 1995, before me personally came ____________, to me known, who, being by me duly sworn, did depose and say that he is ___________ of Packaging International Finance, an unlimited company described in and which executed the foregoing instrument; that it was executed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority.

 

    

 

STATE OF NEW YORK )

) ss.:

COUNTY OF NEW YORK )

 

On the 20 day of November, 1995, before me personally came W.B. DODGE, to me known, who, being by me duly sworn, did depose and say that he is VICE PRESIDENT of CHEMICAL BANK, one of the corporations described in and which executed the foregoing instrument; that it was executed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority.

 

  /s/ [Notary]

 

 

 

Exhibit 4.8

 

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of July 5, 2024, among (i) Smurfit Kappa Treasury Funding Designated Activity Company (f/k/a Smurfit Capital Funding PLC), a designated activity company organized under the laws of Ireland (the “Issuer”); (ii) the entities listed in the signature pages hereto as “Existing Guarantors” (the “Existing Guarantors”); (iii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors” and, together with the Existing Guarantors, the “Guarantors”); and (vi) The Bank of New York Mellon, as successor trustee to Chemical Bank, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS the Issuer, the Existing Guarantors and the Trustee have heretofore executed an Indenture, dated as of November 15, 1995 (as amended or supplemented, the “Indenture”), providing for the issuance of 7.5% debentures due 2025 (the “Notes”) by the Issuer;

 

WHERAS Smurfit Kappa Group plc, an Irish public limited company (“SKG”), the indirect parent of the Issuer, has entered into a transaction agreement, dated as of September 12, 2023, with WestRock Company, a Delaware corporation (“WestRock”), Smurfit WestRock plc (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”) and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Smurfit WestRock (the “Transaction Agreement”);

 

WHEREAS, pursuant to the terms of the Transaction Agreement, the parties thereto agreed to consummate a combination (the “Combination”), following which Smurfit WestRock will be the parent of each of SKG and WestRock;

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Sections 205 and 303 of the Indenture and all of the other applicable provisions of the Indenture and the Notes (the “New Guarantees”); and

 

WHEREAS pursuant to Section 901(9) of the Indenture, the Issuer, the Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note; provided that such Supplemental Indenture does not adversely affect the interest of any Holder of a Note in any material respect.

 

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

 

1.            Agreement to Guarantee. Each New Guarantor hereby agrees, jointly and severally with all Existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Sections 205 and 303 of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.            Agreement to be Bound. Each New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

 

 

 

3.            Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

4.            Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.            Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Issuer and the Guarantors, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Issuer and the Guarantors by corporate action or otherwise, (iii) the due execution hereof by the Issuer and the Guarantors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.

 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart signature page by e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

7.            Incorporation by Reference. Section 115 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.            Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

[Signature pages follow]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

Issuer

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY (f/k/a Smurfit Capital Funding PLC)

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

 

 

 

Existing Guarantors

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT KAPPA PACKAGING LIMITED (f/k/a Jefferson Smurfit Group Public Limited Company)

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

 

 

 

SMURFIT INTERNATIONAL B.V.

 

By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

 

 

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT KAPPA TREASURY UNLIMITED COMPANY (f/k/a Packaging International Finance)

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT WESTROCK PLC

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION

 

By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

 

 

 

WESTROCK COMPANY

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

 

 

 

WRKCO. INC.

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

 

 

 

WESTROCK MWV, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

 

 

 

WESTROCK RKT, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

 

 

 

THE BANK OF NEW YORK MELLON, as Trustee

 

By /s/ Francine Kincaid  
Name: Francine Kincaid  
Title: Vice President  

 

 

 

 

Exhibit 4.9

 

Execution Version

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY,

as Issuer,

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY,
as a Parent Guarantor,

 

SMURFIT KAPPA FUNDING DESIGNATED ACTIVITY COMPANY,
as a Parent Guarantor,

 

SMURFIT KAPPA CORPORATION DESIGNATED ACTIVITY COMPANY,
as a Parent Guarantor,

 

SMURFIT KAPPA HOLDINGS LIMITED,
as a Parent Guarantor,

 

DEUTSCHE BANK LUXEMBOURG S.A.,
as Transfer Agent and Registrar

 

_________________________________

 

INDENTURE

 

Dated as of September 16, 2019

___________________________________

 

1.50% Senior Notes due 2027

 

 

 

 

TABLE OF CONTENTS

 

  Page
    
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE  1
    
SECTION 1.1. Definitions  1
SECTION 1.2. Incorporation by Reference of TIA  14
SECTION 1.3. Rules of Construction  15
    
ARTICLE II THE NOTES  15
    
SECTION 2.1. Form and Dating  15
SECTION 2.2. Execution and Authentication  16
SECTION 2.3. Registrar and Paying Agent  17
SECTION 2.4. Paying Agent To Hold Money  18
SECTION 2.5. List of Holders  18
SECTION 2.6. Book-Entry Provisions for Global Notes  18
SECTION 2.7. Registration of Transfer and Exchange  20
SECTION 2.8. Replacement Notes  25
SECTION 2.9. Outstanding Notes  25
SECTION 2.10. Treasury Notes  26
SECTION 2.11. Temporary Notes  26
SECTION 2.12. Cancellation  26
SECTION 2.13. Defaulted Interest  26
SECTION 2.14. ISINs and Common Codes  27
SECTION 2.15. Deposit of Moneys  27
SECTION 2.16. Certain Matters Relating to Global Notes  27
SECTION 2.17. Interest  28
    
ARTICLE III REDEMPTION  28
    
SECTION 3.1. Optional Redemption  28
SECTION 3.2. Notices to Trustee  28
SECTION 3.3. Selection of Notes to Be Redeemed  28
SECTION 3.4. Notice of Redemption  29
SECTION 3.5. Effect of Notice of Redemption  30
SECTION 3.6. Deposit of Redemption Price  30
SECTION 3.7. Notes Redeemed in Part  31
    
ARTICLE IV COVENANTS  31
    
SECTION 4.1. Payment of Notes  31
SECTION 4.2. Maintenance of Office or Agency  31
SECTION 4.3. [Intentionally omitted]  31
SECTION 4.4. [Intentionally omitted]  32
SECTION 4.5. Corporate Existence  32
SECTION 4.6. Payment of Taxes and Other Claims  32
SECTION 4.7. Maintenance of Properties and Insurance  32
SECTION 4.8. Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries  32
SECTION 4.9. Compliance with Laws  33
SECTION 4.10. Negative Pledge  33
    

i 

 

 

SECTION 4.11. Waiver of Stay; Extension or Usury Laws  34
SECTION 4.12. [Intentionally omitted]  34
SECTION 4.13. [Intentionally omitted]  34
SECTION 4.14. [Intentionally omitted]  34
SECTION 4.15. [Intentionally omitted]  34
SECTION 4.16. [Intentionally omitted]  34
SECTION 4.17. Reports  34
SECTION 4.18. [Intentionally omitted]  35
SECTION 4.19. Change of Control Repurchase Event  35
SECTION 4.20. Additional Amounts  37
SECTION 4.21. Payment of Non-Income Taxes and Similar Charges  38
SECTION 4.22. Compliance Certificate; Notice of Default  38
SECTION 4.23. [Intentionally omitted]  39
SECTION 4.24. [Intentionally omitted]  39
SECTION 4.25. [Intentionally omitted]  39
SECTION 4.26. [Intentionally omitted]  39
SECTION 4.27. Further Instruments and Acts  39
    
ARTICLE V SUCCESSOR CORPORATION  39
    
SECTION 5.1. Consolidation, Merger or Sale of Assets  39
SECTION 5.2. Successor Corporation Substituted  40
    
ARTICLE VI DEFAULT AND REMEDIES  40
    
SECTION 6.1. Events of Default  40
SECTION 6.2. Acceleration  42
SECTION 6.3. Other Remedies  42
SECTION 6.4. The Trustee May Enforce Claims Without Possession of Securities  42
SECTION 6.5. Rights and Remedies Cumulative  42
SECTION 6.6. Delay or Omission Not Waiver  42
SECTION 6.7. Waiver of Past Defaults  43
SECTION 6.8. Control by Majority  43
SECTION 6.9. Limitation on Suits  43
SECTION 6.10. Collection Suit by Trustee  44
SECTION 6.11. Trustee May File Proofs of Claim  44
SECTION 6.12. Priorities  44
SECTION 6.13. Restoration of Rights and Remedies  45
SECTION 6.14. Undertaking for Costs  45
SECTION 6.15. Additional Payments  45
    
ARTICLE VII TRUSTEE  45
    
SECTION 7.1. Duties of Trustee  45
SECTION 7.2. Rights of Trustee  47
SECTION 7.3. Individual Rights of Trustee  48
SECTION 7.4. Trustee’s Disclaimer  48
SECTION 7.5. Notice of Default  48
SECTION 7.6. Compensation and Indemnity  48
SECTION 7.7. Replacement of Trustee  49
    

ii 

 

 

SECTION 7.8. Successor Trustee by Merger, etc  50
SECTION 7.9. Eligibility; Disqualification  51
SECTION 7.10. Disqualification; Conflicting Interests  51
SECTION 7.11. [Intentionally omitted]  51
SECTION 7.12. Force Majeure  51
SECTION 7.13. Consequential Loss  51
    
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE  51
    
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance  51
SECTION 8.2. Legal Defeasance and Discharge  51
SECTION 8.3. Covenant Defeasance  52
SECTION 8.4. Conditions to Legal or Covenant Defeasance  53
SECTION 8.5. Satisfaction and Discharge of Indenture  53
SECTION 8.6. Survival of Certain Obligations  54
SECTION 8.7. Acknowledgment of Discharge by Trustee  54
SECTION 8.8. Application of Trust Moneys  54
SECTION 8.9. Repayment to the Issuer; Unclaimed Money  55
SECTION 8.10. Reinstatement  55
    
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS  56
    
SECTION 9.1. Without Consent of Holders of Notes  56
SECTION 9.2. With Consent of Holders of Notes  57
SECTION 9.3. Revocation and Effect of Consents  59
SECTION 9.4. Notation on or Exchange of Notes  59
SECTION 9.5. Trustee to Sign Amendments, etc  59
    
ARTICLE X GUARANTEES  60
    
SECTION 10.1. Guarantee  60
SECTION 10.2. Limitation on Liability  61
SECTION 10.3. Successors and Assigns  62
SECTION 10.4. No Waiver  62
SECTION 10.5. Modification  62
SECTION 10.6. Release of Guarantor  62
SECTION 10.7. Execution of Supplemental Indenture for Future Guarantors  63
    
ARTICLE XI MISCELLANEOUS  64
    
SECTION 11.1. Notices  64
SECTION 11.2. Communications by Holders with Other Holders  65
SECTION 11.3. Certificate and Opinion as to Conditions Precedent  65
SECTION 11.4. Statements Required in Certificate or Opinion  66
SECTION 11.5. Rules by Trustee, Paying Agent, Registrar  66
SECTION 11.6. Legal Holidays  67
SECTION 11.7. Governing Law  67
SECTION 11.8. Submission to Jurisdiction; Appointment of Agent for Service  67
SECTION 11.9. No Adverse Interpretation of Other Agreements  67
SECTION 11.10. No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders  67
SECTION 11.11. Currency Indemnity  68
    

iii 

 

 

SECTION 11.12. Currency Calculation  68
SECTION 11.13. Information  68
SECTION 11.14. Successors  68
SECTION 11.15. Counterpart Originals  69
SECTION 11.16. Severability  69
SECTION 11.17. Table of Contents, Headings, etc  69
SECTION 11.18. Termination of Priority Agreement  69

 

SCHEDULES  
   
Schedule A - Subsidiary Guarantors

 

EXHIBITS    
     
Exhibit A - Form of Global Note
Exhibit B - Form of Definitive Note
Exhibit C - Form of Transfer Certificate for Transfer from Rule 144A Global Note to Regulation S Global Note
Exhibit D - Form of Supplemental Indenture

 

iv 

 

 

INDENTURE, dated as of September 16, 2019, among: (i) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (ii) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKA”), (iii) Smurfit Kappa Funding Designated Activity Company, a designated activity company limited by shares incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKF”), (iv) Smurfit Kappa Corporation Designated Activity Company, a designated activity company limited by shares incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKC”), (v) Smurfit Kappa Holdings Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKHL”), (vi) Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKIL”), and (vii) Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKG” together with SKA, SKF, SKC, SKHL and SKIL, the “Parent Guarantors”), (viii) the Subsidiary Guarantors named in Schedule A hereto, (ix) Deutsche Trustee Company Limited, as Trustee, (x) Deutsche Bank AG, London Branch, as Principal Paying Agent and (xi) Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar.

 

The Issuer has duly authorized the creation and issuance of its 1.50% Senior Notes due 2027 issued on the date hereof (the “Original Notes”) and the Issuer may issue, from time to time after the date hereof, an unlimited principal amount of additional securities having identical terms and conditions as any series of the Original Notes (the “Additional Notes”, and together with the Original Notes, the “Notes”); and, to provide therefor, the Issuer has duly authorized the execution and delivery of this Indenture. The aggregate principal amount of Notes that shall be issued on the date hereof equals €750.0 million.

 

Each party hereto agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes:

 

ARTICLE I

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.1. Definitions. For purposes of this Indenture, unless otherwise specifically indicated herein, the term “consolidated” with respect to any Person refers to such Person consolidated with its Subsidiaries. In addition, for purposes of the following definitions and this Indenture generally, all ratios and computations based on IFRS shall be made in accordance with IFRS and shall be based upon the consolidated financial statements of SKG and its subsidiaries prepared in conformity with IFRS. As used in this Indenture, the following terms shall have the following meanings:

 

“Additional Amounts” shall have the meaning set forth in Section 4.20(b).

 

“Additional Notes” shall have the meaning set forth in the preamble to this Indenture.

 

 

 

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control”, as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling”, “controlled by” and “under common control with” shall have correlative meanings.

 

“Agent” means the Principal Paying Agent, any Registrar, Paying Agent, Authenticating Agent or co-Registrar.

 

“Agent Members” shall have the meaning set forth in Section 2.16(a).

 

“Attributable Debt” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with IFRS.

 

“Authenticating Agent” shall have the meaning set forth in Section 2.2.

 

“Authorized Agent” shall have the meaning set forth in Section 11.8.

 

“Bankruptcy Law” means (i) for purposes of the Issuer, any bankruptcy, insolvency, winding-up or other similar statute (including the relevant provisions of the Irish Companies Act 2014 and the examinership court protection procedure), regulation or provision of any jurisdiction in which the Issuer is organized or conducting business and (ii) for purposes of the Trustee and the Holders, Title 11, U.S. Code or any similar United States Federal, state or foreign law for the relief of creditors.

 

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” shall have a corresponding meaning.

 

“Board of Directors” means: (1) with respect to a corporation, the board of directors (or analogous governing body) of the corporation or any committee thereof duly authorized to act on behalf of such board; (2) with respect to a partnership, the board of directors of the general partner of the partnership; (3) with respect to any limited liability company, the managing member or members (or analogous governing body) or any controlling committee of managing members thereof; and (4) with respect to any other Person, the board or committee of such Person serving a similar function.

 

2

 

 

“Board Resolution” means a duly authorized resolution of the Board of Directors of the Issuer certified by an Officer and delivered to the Trustee.

 

“Bund Rate” as selected by the Issuer, with respect to any relevant date, means the rate per annum at the time of computation, equal to the equivalent yield to maturity as of such date of the Comparable German Bund Issue, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such relevant date, where:

 

(1)            “Comparable German Bund Issue” means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such redemption date to June 15, 2027 and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro- denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to June 15, 2027; provided, however, that, if the period from such redemption date to June 15, 2027 is less than one year, a fixed maturity of one year shall be used;

 

(2)            “Comparable German Bund Price” means, with respect to any relevant date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations;

 

(3)            “Reference German Bund Dealer” means any dealer of German Bundesanleihe securities appointed by the Issuer in consultation with the Trustee; and

 

(4)            “Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any relevant date, the average as determined by the Issuer of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day preceding the relevant date.

 

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City, Dublin or London.

 

“Capital Stock” means:

 

(1)            in the case of a corporation, corporate stock;

 

(2)            in the case of a company, shares of such company;

 

(3)            in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

3

 

 

(4)            in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

(5)            any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person;

 

provided that debt securities convertible into interests specified in (1) through (5) above shall not be deemed “Capital Stock.”

 

“Change in Tax Law” shall have the meaning set forth in Paragraph 8 of any Note.

 

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

 

(1)            the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or transfer of SKA’s Voting Stock), in one or a series of related transactions, of all or substantially all of the properties or assets of SKA and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than another Parent Guarantor;

 

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

 

(3)            the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) other than a Parent Guarantor or other direct or indirect parent company that is wholly owned by a Parent Guarantor becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of SKA, measured by voting power rather than number of shares.

 

“Change of Control Offer” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment Date” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Repurchase Event” means a Change of Control and a Rating Event.

 

“Clearing Agency” means one or more of Euroclear, Clearstream Banking, or the successor of either of them, in each case acting directly, or through a custodian, nominee or depository.

 

“Clearstream Banking” means Clearstream Banking S.A.

 

“Closing Date” means the date of this Indenture.

 

“Code” means the United States Internal Revenue Code of 1986, as amended.

 

“Commission” means the United States Securities and Exchange Commission, or any successor entity thereof from time to time.

 

4

 

 

“Common Depositary” means the common depositary for Euroclear and Clearstream Banking, which shall initially be Deutsche Bank AG, London Branch, or its nominee, which shall initially be BT Globenet Nominees Limited.

 

“Consolidated Net Tangible Assets” means, as of any date of determination, the total amount of all assets of SKG and its Subsidiaries, determined on a consolidated basis in accordance with IFRS, as of the end of the most recent fiscal quarter for which SKG’s financial statements are available (but which may give pro forma effect to the acquisition of any assets or liabilities following the end of such recent fiscal quarter up to and including the determination date), less the sum of:

 

(1)            SKG’s consolidated current liabilities as of such quarter end (other than (a) short-term borrowings and (b) long-term debt due within one year), determined on a consolidated basis in accordance with IFRS; and

 

(2)            SKG’s consolidated assets that are properly classified as intangible assets as of such quarter end, determined on a consolidated basis in accordance with IFRS.

 

“Consolidated Total Assets” means, as of any date of determination, the total amount of all assets of SKG and its Subsidiaries, determined on a consolidated basis in accordance with IFRS, as of the end of the most recent fiscal quarter for which SKG’s financial statements are available.

 

“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any dividend or other obligation that, in each case, does not constitute Indebtedness (“primary obligation”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent.

 

“Covenant Defeasance” shall have the meaning set forth in Section 8.3.

 

“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

“Default Interest Payment Date” shall have the meaning set forth in Section 2.13.

 

“Definitive Notes” means Notes in definitive registered form substantially in the form of Exhibit B hereto.

 

“Euroclear” means Euroclear Bank SA/NV.

 

“Euronext Dublin” shall have the meaning set forth in Section 2.3.

 

“Event of Default” shall have the meaning set forth in Section 6.1.

 

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

 

“Existing Senior Notes” means the (i) €500.0 million in aggregate principal amount outstanding of 3.250% Senior Notes due 2021 issued by SKA; (ii) €250.0 million in aggregate principal amount outstanding of Senior Secured Floating Rate Notes due 2020 issued by SKA; (iii) €400.0 million in aggregate principal amount outstanding of 4.125% Senior Secured Notes due 2020 issued by SKA; (iv) €500.0 million in aggregate principal amount outstanding of 2.375% Senior Notes due 2024 issued by SKA; (v) €250.0 million in aggregate principal amount outstanding of 2.75% Senior Notes due 2025 issued by SKA; and (vi) €1,000.0 million in aggregate principal amount outstanding of 2.875% Senior Notes due 2026 issued by SKA.

 

5

 

 

“Global Notes” means the Regulation S Global Note and the Rule 144A Global Note.

 

“guarantee” means a guarantee, contingent or otherwise, of all or any part of any Indebtedness (other than by endorsement of negotiable instruments for collection in the ordinary course of business), including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof.

 

“Guarantee” means any guarantee by a Guarantor of the Issuer’s obligations under this Indenture and the Notes pursuant to the terms of this Indenture.

 

“Guarantee Obligations” shall have the meaning set forth in Section 10.1(a).

 

“Guarantor” means the Parent Guarantors, the Subsidiary Guarantors and their respective successors and assigns, in each case, until the Guarantee of such Person has been released in accordance with the provisions of this Indenture.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements; and (2) other similar agreements or arrangements designed to enable such Person to manage fluctuations in interest rates.

 

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

 

“IFRS” means International Financial Reporting Standards as adopted by the European Union, International Financial Reporting Interpretations Committee as in effect as of the date of this Indenture; provided, however, that all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with IFRS as in effect on the date of such report or other financial information. All ratios and computations based on IFRS contained in this Indenture will be computed in conformity with IFRS.

 

“Indebtedness” means, with respect to any specified Person, any Indebtedness of such Person, whether or not contingent, in respect of:

 

(1)borrowed money;

 

(2)bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(3)banker’s acceptances, letters of credit and similar instruments;

 

(4)Lease Obligations and Attributable Debt;

 

6

 

 

(5)the deferred balance of the purchase price of any property which remains unpaid more than one year after such property is acquired, except any such balance that constitutes an accrued expense, a trade payable or a similar current liability; or

 

(6)any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with IFRS. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person. Notwithstanding the foregoing and for the avoidance of doubt, the term “Indebtedness” shall not include: (1) Contingent Obligations in the ordinary course of business; (2) in connection with the purchase by SKA or any of its Subsidiaries of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; and (3) any contingent obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage taxes.

 

The amount of any Indebtedness outstanding as of any date shall be:

 

(1)the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and

 

(2)the principal amount thereof in the case of any other Indebtedness.

 

In addition, Indebtedness of any Person shall include Indebtedness described in the preceding paragraph that would not appear as a liability on the balance sheet of such Person if:

 

(1)such Indebtedness is the obligation of a partnership or joint venture that is not a Subsidiary of such Person (a “Joint Venture”);

 

(2)such Person or a Subsidiary of such Person is a general partner of the Joint Venture (a “General Partner”); and

 

(3)there is recourse, by contract or operation of law, with respect to the payment of such Indebtedness to property or assets of such Person or a Subsidiary of such Person; and then such Indebtedness shall be included in an amount not to exceed:

 

(a)the lesser of (i) the net assets of the General Partner and (ii) the amount of such obligations to the extent that there is recourse, by contract or operation of law, to the property or assets of such Person or a Subsidiary of such Person; or

 

(b)if less than the amount determined pursuant to clause (i) immediately above, the actual amount of such Indebtedness that is recourse to such Person or a Subsidiary of such Person, if the Indebtedness is evidenced by a writing and is for a determinable amount and the related interest expense shall be included in consolidated interest expense to the extent actually paid by SKA or its Subsidiaries.

 

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“Indenture” means this Indenture, as amended, modified or supplemented from time to time in accordance with the terms hereof.

 

“Investment Grade Rating” means:

 

(1)            with respect to S&P any of the rating categories from and including AAA to and including BBB-; and

 

(2)            with respect to Moody’s any of the rating categories from and including Aaa to and including Baa3.

 

“Issue Date” means the date on which Notes are originally issued under this Indenture.

 

“Issuer” means the party named as such in this Indenture until a successor replaces it pursuant to this Indenture and thereafter means such successor.

 

“Issuer Order” means a written order or request signed in the name of the Issuer by (i)   two Officers of the Issuer, one of whom must be the Chief Executive Officer, the President, the Chief Financial Officer or the Finance Director of the Issuer or any other Officer so authorized or (ii)   two members of the Board of Directors of the Issuer, and delivered to the Trustee.

 

“Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a lease that would at that time be required to be capitalized on a balance sheet in accordance with IFRS.

 

“Legal Defeasance” shall have the meaning set forth in Section 8.2.

 

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement.

 

“Maturity Date” means September 15, 2027.

 

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

 

“Notes” shall have the meaning set forth in the preamble of this Indenture.

 

“Offering Memorandum” means the Offering Memorandum of the Issuer, dated September 2, 2019, relating to the Notes.

 

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“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer or the Secretary of SKG, SKF or the Issuer, as applicable.

 

“Officers’ Certificate” means a certificate signed by two Officers of SKG, SKF or the Issuer, as applicable.

 

“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee.

 

“Original Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Other Hedging Agreements” means any foreign exchange contracts, currency swap agreements, futures contract, option contract, commodity futures contract, commodity option, commodity swap, commodity collar agreement, commodity cap agreements or other similar agreements or arrangements designed to enable such Person to manage the fluctuations in currency or commodity values.

 

“Parent Guarantors” means the parties named as such in this Indenture or any successor entity.

 

“Paying Agent” shall have the meaning set forth in Section 2.3.

 

“Payment Default” shall have the meaning set forth in Section 6.1(4)(a). “Payor” means the Issuer or a successor thereof.

 

“Permitted Interest” means any Securitization Lien or other Lien that arises in relation to any securitization or other structured finance transaction where:

 

(1)            the primary source or payment of any obligations of the issuer is linked or otherwise related to cash flow from particular property or assets (or where payment of such obligations is otherwise supported by such property or assets); and

 

(2)            recourse to the issuer in respect of such obligations is conditional on cash flow from such property or assets.

 

“Permitted Liens” means:

 

(1)            Liens created for the benefit of or to secure the Notes or the Guarantees;

 

(2)            Liens in favor of SKA or any Subsidiary of SKA;

 

(3)            Liens on property or assets or shares of stock of a Person existing at the time such Person is merged with or into or consolidated with SKA or any Subsidiary of SKA; provided that such Liens were not incurred in contemplation of such merger or consolidation and do not extend to any Principal Property other than such property of the Person merged into or consolidated with SKA or the Subsidiary of SKA;

 

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(4)            Liens on property or assets or shares of stock existing at the time of acquisition thereof by SKA or any Subsidiary of SKA and purchase money or similar Liens; provided that such Liens were not incurred in contemplation of such acquisition and do not extend to any other property, assets or shares of stock, as applicable;

 

(5)            Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature or arising by operation of law incurred in the ordinary course of business;

 

(6)            Liens to secure certain development, construction, alteration, repair or improvement costs or to secure Indebtedness incurred to provide funds for the reimbursement of funds expended for the foregoing purposes; provided that the Liens securing such costs or Indebtedness shall not extend to any Principal Property other than that being so developed, constructed, altered, repaired or improved;

 

(7)            Liens existing on the date of the Indenture;

 

(8)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith;

 

(9)            statutory mechanics’, workmen’s, materialmen’s, operators’ or similar Liens arising by operation of law and in the ordinary course of business;

 

(10)          Liens incurred in connection with government contracts, including the assignment of moneys due or to become due thereon;

 

(11)          Liens securing Hedging Obligations or Other Hedging Agreements, in each case not for speculative purposes;

 

(12)          Liens arising in the ordinary course of business and not in connection with the borrowing of money or Liens to secure the payment of pension, retirement or similar obligations;

 

(13)          Liens securing judgments or orders, or securing appeal or other surety bonds related to such judgments or orders, against SKA or any Subsidiary of SKA relating to litigation being contested in good faith by appropriate proceedings;

 

(14)          Liens securing any Permitted Interest;

 

(15)          extensions, substitutions, replacements or renewals of any of the foregoing Indebtedness; provided that (i) such Indebtedness is not increased and (ii) if the assets securing any such Indebtedness are changed in connection with any such extension, substitution, replacement or renewal, the value of the assets securing such Indebtedness is not increased;

 

(16)          Liens incurred in connection with Lease Obligations (including any lease, concession, license of property, operating lease or other arrangement (or guarantee thereof) which are considered to be a finance lease or capital lease after implementation of IFRS 16 (Leases)); and

 

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(17)          Liens securing Indebtedness or other obligations in an amount not to exceed the greater of: (i) €500.0 million or (ii) 5.0% of the Consolidated Total Assets.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

“Principal Property” means any building, structure or other facility, together with the land upon which it is erected and fixtures comprising a part thereof or any production, processing or other similar equipment or machinery contained therein, owned or leased by SKA or any Subsidiary of SKA, used primarily for manufacturing, the net book value on the books of SKG of which on the date as of which the determination is being made exceeds €10.0 million, other than any such building, structure or other facility or any portion thereof or any such fixture, equipment or machinery (together with the land upon which it is erected and fixtures comprising a part thereof) which, in the opinion of the Board of Directors of SKA, is not of material importance to the total business conducted by SKA and its Subsidiaries taken as a whole.

 

“Priority Agreement” means the Amended and Restated Priority Agreement, dated 28 January 2019, as amended, modified, supplemented or replaced from time to time, among SKF, certain Subsidiaries of SKF, the trustees for the Existing Senior Notes and the other parties thereto from time to time.

 

“Private Placement Legend” means the legend set forth in Section 2.7(g).

 

“Public Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (1) a public offering registered under the Securities Act or (2) a private placement to institutional investors that is underwritten for resale in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the Commission for public resale. The term “Public Indebtedness,” for the avoidance of doubt, shall not be construed to include any Indebtedness issued to institutional investors in a direct placement of such Indebtedness that is not underwritten by an intermediary (it being understood that, without limiting the foregoing, a financing that is distributed to not more than ten Persons (provided that multiple managed accounts and affiliates of any such Persons shall be treated as one Person for the purposes of this definition) shall not be deemed underwritten), or any Indebtedness under the Senior Facility Agreement, commercial bank or similar Indebtedness, Lease Obligation or recourse transfer of any financial asset or any other type of Indebtedness incurred in a manner not customarily viewed as a “securities offering” or in connection with any securitization or other structured finance transaction.

 

“Purchase Agreement” means the Purchase Agreement dated as of the date of the Offering Memorandum, among the Issuer, the Guarantors and the Initial Purchasers.

 

“Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A under the Securities Act.

 

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

 

“Rating Event” means (1) if on the date of first public announcement of an event that constitutes a Change of Control the Notes are then rated by both Rating Agencies as having an Investment Grade Rating, there is a decrease in the rating of the Notes by at least one of the Rating Agencies on or within 90 days of the date of the Change of Control (which period shall be extended for up to, but no longer than, an additional 90 days so long as any Rating Agency has publicly announced that it is considering a possible downgrade of the Notes) which causes the Notes to no longer have an Investment Grade Rating from both Rating Agencies, or (2) if on the date of first public announcement of an event that constitutes a Change of Control the Notes are not then rated by both Rating Agencies as having an Investment Grade Rating, (a) there is a decrease in the Rating Category of the Notes by at least one of the Rating Agencies on or within 90 days of the date of the Change of Control (which period shall be extended for up to, but no longer than, an additional 90 days so long as any Rating Agency has publicly announced that it is considering a possible downgrade of the Notes) which decrease results in the rating on the Notes by such Rating Agency to be at least one Rating Category below the rating of the Notes issued by such Rating Agency immediately preceding the public announcement of the event that continues the relevant Change of Control or (b) a Change of Control is deemed to occur under any series of Existing Senior Notes (other than the 2.875% Senior Notes due 2026 issued by SKA).

 

“Record Date” means a Record Date specified in the Notes.

 

“Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 7 of the Notes.

 

“Redemption Price” when used with respect to any Note to be redeemed, means the price fixed for such redemption pursuant to this Indenture and Paragraphs 7 and 8 of the Notes.

 

“Registrar” shall have the meaning set forth in Section 2.3.

 

“Regulation S” means Regulation S (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Regulation S Global Note” shall have the meaning set forth in Section 2.1.

 

“Relevant Taxing Jurisdiction” shall have the meaning set forth in Section 4.20(a).

 

“Restricted Lien” shall have the meaning set forth in Section 4.10.

 

“Rule 144” means Rule 144 (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Rule 144A” means Rule 144A (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

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“Rule 144A Global Note” shall have the meaning set forth in Section 2.1.

 

“S&P” means Standard & Poor’s Ratings Group or any successor to the rating agency business thereof.

 

“Securities Act” means the United States Securities Act of 1933, as amended.

 

“Securitization Lien” means a customary back-up security interest granted as part of a sale, lease, transfer or other disposition of assets by SKA or any of its Subsidiaries to, either directly or indirectly, any issuer in a securitization or other structured finance transaction.

 

“Senior Facility Agreement” means (i) the Revolving Facility Agreement dated 28 January 2019 between, among others, SKG as the parent, SKC as the company, the other borrowers named therein, Banco Santander, S.A., London Branch, Barclays Bank plc, BNP Paribas, Dublin Branch, Credit Agricole Corporate and Investment Bank, Credit Lyonnais S.A., Citibank N.A., Jersey Branch, Commerzbank Aktiengesellschaft, Coöperatieve Rabobank U.A. trading as Rabobank Dublin, Danske Bank A/S, HSBC France, ING Bank N.V., Dublin Branch and Ulster Bank Ireland DAC as mandated lead arrangers; and National Westminster Bank plc as agent, as the same may be amended, supplemented or otherwise modified from time to time and (ii) any renewal, extension, refunding, restructuring, replacement, or refinancing thereof (whether with the original facilities agent and lenders or another facilities agent or agents or other lenders and whether provided under the Senior Facility Agreement or any other agreement or indenture); provided that Indebtedness under the Senior Facility Agreement that constitutes Public Indebtedness shall not be deemed to be Indebtedness under the Senior Facility Agreement for purposes of clause (3) of Section 10.6.

 

“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date hereof.

 

“SKA” means the party named as such in this Indenture, and any successor thereto, which serves as the issuer of the Existing Senior Notes.

 

“SKA Successor” shall have the meaning set forth in Section 5.1.

 

“SKC” means the party named as such in this Indenture, and any successor thereto.

 

“SKF” means the party named as such in this Indenture, and any successor thereto, which is the direct parent company of SKA.

 

“SKG” means the party named as such in this Indenture, and any successor thereto or any other entity that serves as the ultimate parent company of the Issuer.

 

“Subsidiary” means, with respect to any specified Person:

 

(1)            any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

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(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 one or more Subsidiaries of such Person (or any combination thereof); provided, however, that for purposes of Section 4.10 and Section 6.1(5), the term “Subsidiary” shall exclude (i) any Subsidiary which is principally engaged in leasing or in financing installment receivables or which is principally engaged in financing the operations of SKA and its Subsidiaries or (ii) any financial entity whose accounts as of the date of determination are not required to be consolidated with the accounts of SKG in its audited consolidated financial statements or (iii) any Subsidiary that is an issuer in a securitization or other structured financing transaction, so long as in the case of clauses (ii) or (iii) such Subsidiary does not own any Principal Property.

 

“Subsidiary Guarantors” means (i) the Subsidiary Guarantors named in Schedule A hereto and (ii) each existing and future Subsidiary of SKA that provides a Guarantee in accordance with the covenant set forth in Section 4.8.

 

“Successor Issuer” shall have the meaning set forth in Section 5.1(1).

 

“Tax Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 8 of the Notes.

 

“Taxes” shall have the meaning set forth in Section 4.20(a).

 

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

 

“Trust Officer” means any officer within Trust & Security Services (or any successor group of the Trustee), including any director, managing director, vice president, assistant vice president, corporate trust officer, assistant corporate trust officer, secretary, assistant secretary, treasurer, assistant treasurer, associate or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at that time shall be such officers having direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such trust matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

“Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and thereafter means such successor.

 

“U.S. Person” means a “U.S. person” as defined in Rule 902 under the Securities Act or any successor rule.

 

“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

SECTION 1.2. Incorporation by Reference of TIA. This Indenture is subject to the provisions of the TIA which as of the date hereof and thereafter as in effect are specifically incorporated by reference in, and made a part of, this Indenture. No other sections of the TIA are applicable to this Indenture.

 

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All TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by any rule of the Commission and not otherwise defined herein have the meanings assigned to them therein.

 

SECTION 1.3. Rules of Construction. Unless the context otherwise requires:

 

(a)            a term has the meaning assigned to it;

 

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

 

(c)            “or” is not exclusive;

 

(d)            the term “including” is not limiting;

 

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

 

(f)             provisions apply to successive events and transactions; and

 

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

 

ARTICLE II

 

THE NOTES

 

SECTION 2.1. Form and Dating. The Notes and the notation relating to the Trustee’s certificate of authentication thereof, shall be substantially in the form of Exhibit A or B, as applicable. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage; provided that any such notations, legends or endorsements are in a form reasonably acceptable to the Issuer. The Issuer and the Trustee shall approve the form of the Notes and any notation, legend or endorsement on them. Each Note shall be dated the date of its issuance and shall show the date of its authentication.

 

The terms and provisions contained in the Notes, annexed hereto as Exhibit A or B, shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Issuer, Trustee, the Registrar and the Principal Paying Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. The Notes will initially be represented by the Global Notes.

 

Notes offered and sold to non-U.S. persons outside the United States in offshore transactions in their initial distribution in reliance on Regulation S shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A hereto, with such applicable legends as are provided in Exhibit A, except as otherwise permitted herein (together with all other Notes that are not Rule 144A Global Notes, the “Regulation S Global Notes”). The aggregate principal amount of the Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Regulation S Global Note), in connection with a corresponding decrease or increase in the aggregate principal amount of the Rule 144A Global Note or in consequence of the issue of Definitive Notes or additional Regulation S Global Notes, as hereinafter provided.

 

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Notes offered and sold in their initial distribution to QIBs in reliance on Rule 144A shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A hereto, with such applicable legends as are provided in Exhibit A hereto, except as otherwise permitted herein (the “Initial Rule 144A Global Notes” and together with any other Note evidencing the debt, or any portion of the debt, evidenced by such Initial Rule 144A Global Notes, the “Rule 144A Global Notes”). The aggregate principal amount of the Rule 144A Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Rule 144A Global Note), in connection with a corresponding decrease or increase in the aggregate principal amount of the Regulation S Global Notes or in consequence of the issue of Definitive Notes or additional Rule 144A Global Notes, as hereinafter provided.

 

SECTION 2.2. Execution and Authentication. Two Officers shall sign, or one Officer and one member of the Board of Directors of the Issuer shall sign, or two members of the Board of Directors of the Issuer shall sign, or one Officer shall sign and one Officer, a Secretary or an Assistant Secretary (each of whom shall, in each case, have been duly authorized by all requisite corporate actions) shall attest to, the Notes for the Issuer by manual or facsimile signature.

 

If an Officer or member of the Board of Directors of the Issuer whose signature is on a Note was an Officer or member of such Board of Directors at the time of such execution but no longer holds that office or position at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

 

A Note shall not be valid until an authorized signatory of the Trustee or Deutsche Bank Luxembourg S.A. as the appointed Authenticating Agent manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

 

Except as otherwise provided herein, the aggregate principal amount of Notes which may be outstanding at any time under this Indenture is not limited in amount. The Trustee shall, upon receipt of an Issuer Order in the form of an Officers’ Certificate, authenticate (i) Original Notes for original issue on the Closing Date in an aggregate principal amount of €750.0 million in respect of the Notes and (ii) Additional Notes from time to time for issuance after the Closing Date to the extent permitted hereunder. Additional Notes will be treated as the same series of Notes as the Original Notes for all purposes under this Indenture, including for purposes of waivers, amendments, redemptions and offers to purchase. Such Issuer Order shall specify the aggregate principal amount of Notes to be authenticated, the series and type of Notes, the date on which the Notes are to be authenticated, the issue price and the date from which interest on such Notes shall accrue, whether the Notes are to be Original Notes or Additional Notes, whether the Notes are to be issued as Definitive Notes or Global Notes and whether or not the Notes shall bear the Private Placement Legend, or such other information as the Trustee may reasonably request. Upon receipt of an Issuer Order in the form of an Officers’ Certificate, the Trustee shall authenticate Notes in substitution of Notes originally issued to reflect any name change of the Issuer. In authenticating the Notes and accepting the responsibilities under this Indenture in relation to the Notes, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.

 

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The Trustee may appoint an authenticating agent (“Authenticating Agent”) reasonably acceptable to the Issuer to authenticate Notes. Unless otherwise provided in the 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 Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer. The Trustee initially appoints the Registrar as Authenticating Agent of the Notes. The Notes shall be issuable only in denominations of €100,000 and any integral multiple of €1,000 in excess thereof.

 

SECTION 2.3. Registrar and Paying Agent. The Issuer shall maintain an office or agency where (a) Definitive Notes may be presented or surrendered for registration of transfer or for exchange (such office or agency, the “Registrar”), (b) Global Notes (and Definitive Notes, if issued) may be presented or surrendered for payment (“Paying Agent”) and (c) notices and demands in respect of such Global Notes (and Definitive Notes, if issued) and this Indenture may be served. In the event that Definitive Notes are issued, the Issuer shall ensure that at least one Person located in London, England and one Person located in Dublin, Ireland (if and for so long as the Notes are admitted to the Global Exchange Market of the Irish Stock Exchange plc trading as Euronext Dublin (“Euronext Dublin”) and the rules of Euronext Dublin so require), in each case reasonably acceptable to the Trustee, is maintained as a Paying Agent and Registrar where (i) in the case of a Registrar, Definitive Notes may be presented or surrendered for registration of transfer or for exchange and notices and demands in respect of such Definitive Notes and this Indenture may be served and (ii) in the case of a Paying Agent, Definitive Notes may be presented or surrendered for payment. The Registrar shall keep a register of the Definitive Notes and of their transfer and exchange. Notices and demands in respect of Global Notes shall be made by the Issuer in accordance with Section 11.1. The Issuer, upon written notice to the Trustee, may have one or more co-Registrars and one or more additional Paying Agents reasonably acceptable to the Trustee. The term “Registrar” includes any co-Registrar and the term “Paying Agent” includes any additional Paying Agent.

 

The Issuer initially appoints Deutsche Bank AG, London Branch, as Principal Paying Agent and Deutsche Bank Luxembourg S.A. as Transfer Agent and Registrar, until such time as any such entity has resigned or a successor has been appointed. In the event that a Paying Agent, Registrar or Transfer Agent is replaced, the Issuer will (so long as the Notes are Global Notes) provide written notice thereof to the Trustee in accordance with Section 11.1. The Issuer may change any Paying Agent, Registrar or Transfer Agent without prior notice to the Holders. SKA or any of its Subsidiaries may act as Paying Agent or Registrar in respect of the Notes. If and for so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice of the change in Paying Agent, Registrar or Transfer Agent to the Companies Announcement Office of Euronext Dublin.

 

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The rights, duties and obligations of the Trustee and the Agents are several and not joint.

 

Payment of principal will be made upon the surrender of Definitive Notes following maturity thereof at the office of the Paying Agent. In the case of a transfer of a Definitive Note in part, upon surrender of the Definitive Note to be transferred, a Definitive Note shall be issued to the transferee in respect of the principal amount transferred and a Definitive Note shall be issued to the transferor in respect of the balance of the principal amount of the transferred Definitive Note at the office of any transfer agent. In all circumstances, the Issuer shall ensure that the Paying Agent shall be located outside Ireland.

 

For the avoidance of doubt, upon the issuance of Definitive Notes, Holders will be able to receive principal and interest on the Notes and will be able to transfer Definitive Notes at the office of such paying and transfer agent, subject to the right of the Issuer to mail payments in accordance with the terms of this Indenture.

 

Claims against the Issuer for payment of principal, interest and Additional Amounts, if any, on the Notes will become void unless presentment for payment is made (where so required herein) within, in the case of principal and Additional Amounts, if any, a period of ten years or, in the case of interest, a period of five years, in each case from the applicable original payment date therefor.

 

SECTION 2.4. Paying Agent To Hold Money. The Issuer shall require each Paying Agent other than the Trustee and the Principal Paying Agent to agree in writing that each Paying Agent shall hold for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, Additional Amounts, if any, premium, if any, or interest on, the Notes, and shall notify the Trustee of any Default by the Issuer in making any such payment. The Issuer at any time may require a Paying Agent to distribute all money held by it to the Trustee and account for any money disbursed and the Trustee may at any time during the continuance of any payment Default, upon written request to a Paying Agent, require such Paying Agent to distribute all money held by it to the Trustee and to account for any money distributed. Upon distribution to the Trustee of all money that shall have been delivered by the Issuer to the Paying Agent, the Paying Agent shall have no further liability for such money.

 

SECTION 2.5. List of Holders. In the event that Definitive Notes are issued, the Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of Notes. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee before each Record Date and at such other times as the Trustee may request in writing a list as of such date and in such form as the Trustee may reasonably require of the names and addresses of Holders of Notes, which list may be conclusively relied upon by the Trustee.

 

SECTION 2.6. Book-Entry Provisions for Global Notes. (a) The Global Notes initially shall (i) be registered in the name of the nominee of the Common Depositary for the accounts of Euroclear or Clearstream, (ii) deposited on behalf of the purchasers of the Notes with the Common Depositary or its custodian and (iii) bear legends as set forth in Section 2.7(g).

 

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(b)            Notwithstanding any other provisions of this Indenture, Global Notes may not be transferred except as a whole by the Common Depositary to a nominee of the Common Depositary or by a nominee of the Common Depositary to the Common Depositary or another nominee of the Common Depositary or, in each case, to another successor of the Common Depositary or a nominee of such successor. Interests of beneficial owners in the Global Notes may be transferred or exchanged for Definitive Notes in accordance with the rules and procedures of the Clearing Agency and the provisions of this Section 2.6, subject to the occurrence of the limited circumstances described in the following sentence. All Global Notes shall be exchanged by the Issuer (with authentication by the Trustee upon receipt of an Issuer Order) for one or more Definitive Notes, if (a) any Clearing Agency notifies the Issuer at any time that it is unwilling or unable to continue to act as a clearing agency and a successor depositary is not appointed within 120 days of such notification, (b) any Clearing Agency so requests following an Event of Default hereunder or (c) in whole (but not in part) at any time if the Issuer in its sole discretion determines and notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes. If an Event of Default occurs and is continuing, the Issuer shall, at the written request delivered through the Common Depositary of the Holder thereof or of the holder of an interest therein, exchange all or part of a Global Note for one or more Definitive Notes (with authentication by the Trustee upon receipt of an Issuer Order); provided, however, that the principal amount at maturity of such Definitive Notes and such Global Note after such exchange shall be €100,000 or integral multiples of €1,000 in excess thereof. Whenever all of a Global Note is exchanged for one or more Definitive Notes, it shall be surrendered by the Holder thereof to the Registrar for cancellation. Whenever a part of a Global Note is exchanged for one or more Definitive Notes, the Global Note shall be surrendered by the Holder thereof to the Registrar who shall cause an adjustment to be made to Schedule A of such Global Note such that the principal amount of such Global Note will be equal to the portion of such Global Note not exchanged and shall thereafter return such Global Note to such Holder. A Global Note may not be exchanged for a Definitive Note other than as provided in this Section 2.6(b). Every Note authenticated and delivered in exchange for or in lieu of a Global Note, or any portion thereof, pursuant to Section 2.8, 2.11 or 3.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Note.

 

(c)            In connection with the transfer of Global Notes as an entirety to beneficial owners pursuant to paragraph (b) of this Section 2.6, the Global Notes shall be deemed to be surrendered to the Registrar for cancellation, and the Issuer shall execute, and the Trustee shall upon written instructions from the Issuer authenticate and make available for delivery, to each beneficial owner in exchange for its beneficial interest in the Global Notes, an equal aggregate principal amount of Definitive Notes of authorized denominations.

 

(d)            Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.6(b) shall, except as otherwise provided by Section 2.7, bear the Private Placement Legend.

 

(e)            Prior to the expiration of the 40-day distribution compliance period as defined in Regulations S, ownership of Book-Entry Interests will be limited to non-U.S. persons and other persons to whom an offer or sale of the Notes is made pursuant to an exemption from registration under the Securities Act.

 

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SECTION 2.7. Registration of Transfer and Exchange. (a) Notwithstanding any provision to the contrary herein, so long as a Note remains outstanding, transfers of beneficial interests in Global Notes or transfers of Definitive Notes, in whole or in part, shall be made only in accordance with this Section 2.7.

 

(b)            If a holder of a beneficial interest in a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in a Regulation S Global Note, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Regulation S Global Note, such holder may, subject to the rules and procedures of the Clearing Agency, to the extent applicable, and subject to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Regulation S Global Note. Upon (1) written instructions given in accordance with the procedures of the Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Rule 144A Global Note, directing the credit of a beneficial interest in the Regulation S Global Note in an amount equal to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (2) a written order given in accordance with the procedures of the Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account and (3) receipt by the Registrar of a certificate in the form of Exhibit C given by the holder of such beneficial interest stating that the exchange or transfer of such interest has been made pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S or Rule 144 under the Securities Act, the Registrar shall promptly deliver appropriate instructions to the Clearing Agency to reduce or reflect on its records a reduction of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred from the relevant participant, and the Registrar shall promptly deliver appropriate instructions to the Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Regulation S Global Note equal to the reduction in the principal amount of such Rule 144A Global Note.

 

(c)            If a holder of a beneficial interest in a Regulation S Global Note wishes at any time to exchange its interest in such Regulation S Global Note for an interest in a Rule 144A Global Note, or to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Rule 144A Global Note, such holder may, subject to the rules and procedures of the Clearing Agency, to the extent applicable, and to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Rule 144A Global Note. Upon (1) written instructions given in accordance with the procedures of the Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Regulation S Global Note directing the credit of a beneficial interest in the Rule 144A Global Note in an amount equal to the beneficial interest in the Regulation S Global Note to be exchanged or transferred, and (2) a written order given in accordance with the procedures of the Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account, the Registrar shall promptly deliver appropriate instructions to the Clearing Agency to reduce or reflect on its records a reduction of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be exchanged or transferred, and the Registrar shall promptly deliver appropriate instructions to the Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Rule 144A Global Note equal to the reduction in the principal amount of such Regulation S Global Note.

 

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(d)            Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in the other Global Note will, upon transfer, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.

 

(e)            In the event that a Global Note is exchanged for Definitive Notes in registered form without interest coupons, pursuant to Section 2.6(b), or a Definitive Note in registered form without interest coupons is exchanged for another such Definitive Note in registered form without interest coupons, or a Definitive Note is exchanged for a beneficial interest in a Global Note, such Notes may be exchanged or transferred for one another only in accordance with (i) such procedures as are substantially consistent with the provisions of Sections 2.7(b) and (c) above (including the certification requirements intended to ensure that such exchanges or transfers comply with Rule 144, Rule 144A or Regulation S, as the case may be) and as may be from time to time adopted by the Issuer and the Trustee.

 

(f)            [Intentionally omitted]

 

(g)            Each Global Note and each Definitive Note issued hereunder shall, upon issuance, bear the legend set forth herein and such legend shall not be removed from such Note except as provided in the next sentence. The legend required for a Note may be removed from a Note if there is delivered to the Issuer and the Trustee such satisfactory evidence, which may include an opinion of independent counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer and the Trustee, that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee, upon receipt of an Issuer Order, shall authenticate and deliver in exchange for such Note another Note or Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Note has been removed from a Note as provided above, no other Note issued in exchange for all or any part of such Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Note is a “restricted security” within the meaning of Rule 144 and instructs the Trustee to cause a legend to appear thereon.

 

The Notes shall bear the following legend (the “Private Placement Legend”) on the face thereof:

 

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[IN THE CASE OF RULE 144A NOTES]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(l), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.

 

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THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

[IN THE CASE OF REGULATION S NOTES]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

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(h)            By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.

 

None of the Trustee, the Registrar or the Principal Paying Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.6 or this Section 2.7. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

 

(i)             Definitive Notes shall be transferable only upon the surrender of a Definitive Note for registration of transfer. When a Definitive Note is presented to the Registrar or a co-registrar with a request to register a transfer, the Registrar shall register the transfer as requested if its requirements for such transfers are met. When Definitive Notes are presented to the Registrar or a co-registrar with a request to exchange them for an equal principal amount of Definitive Notes of other denominations, the Registrar shall make the exchange as requested if the same requirements are met. To permit registration of transfers and exchanges, the Issuer shall execute and, upon receipt of an Issuer Order, the Trustee shall authenticate Definitive Notes at the Registrar’s or co-registrar’s request.

 

(j)             The Issuer shall not be required to make, and the Registrar need not register transfers or exchanges of, Definitive Notes (i) that have been selected for redemption (except, in the case of Definitive Notes to be redeemed in part, the portion thereof not to be redeemed) or (ii) for a period of 15 days prior to a selection of Definitive Notes to be redeemed.

 

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

 

(l)             No service charge will be made for any registration or transfer or exchange of the Notes, but the Trustee, the Registrar and the Paying Agent and transfer agents may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by this Section 2.7.

 

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

 

(n)            Provided such Notes have been offered pursuant to Rule 144A, Holders of Notes (or holders of interests therein) and prospective purchasers designated by such Holders (or holders of interests therein) will have the right to obtain from the Issuer upon request by such Holders (or holders of interests therein) or prospective purchasers, during any period in which the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, or is exempt from reporting pursuant to 12g3-2(b) under the Exchange Act, the information required by paragraph d(4)(i) of Rule 144A in connection with any transfer or proposed transfer of such Notes.

 

SECTION 2.8. Replacement Notes. If a mutilated Definitive Note is surrendered to the Registrar, if a mutilated Global Note is surrendered to the Issuer or if the Holder of a Note claims that such Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and, upon receipt of an Issuer Order, the Trustee shall authenticate a replacement Note in such form as the Note being replaced if the requirements of the Trustee, the Registrar and the Issuer are met. If required by the Trustee, the Registrar and the Issuer, such Holder must provide an indemnity bond or other indemnity, sufficient in the judgment of the Issuer, the Registrar and the Trustee, to protect the Issuer, the Registrar, the Trustee and any Agent from any loss which any of them may suffer if a Note is replaced. The Issuer may charge such Holder for its reasonable, out-of-pocket expenses in replacing a Note, including reasonable fees and expenses of counsel. Every replacement Note is an additional obligation of the Issuer. The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost, stolen or taken Notes.

 

SECTION 2.9. Outstanding Notes. Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except those canceled by it, those delivered to it for cancellation, those reductions in the Global Note effected in accordance with the provisions hereof and those described in this Section as not outstanding. Subject to Section 2.10, a Note does not cease to be outstanding because the Issuer or any of its Affiliates holds the Note.

 

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If a Note is replaced pursuant to Section 2.8 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 2.8.

 

If the principal amount of any Note is considered paid under Section 4.1, it ceases to be outstanding and interest, and Additional Amounts, if any on it cease to accrue.

 

If on a Redemption Date or the Maturity Date the Paying Agent holds cash in euros sufficient to pay all of the principal, interest and Additional Amounts, if any, due on the Notes payable on that date, then on and after that date such Notes cease to be outstanding and interest and Additional Amounts, if any, on such Notes cease to accrue.

 

SECTION 2.10. Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or its Affiliates shall be disregarded, 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 Trust Officer of the Trustee actually knows are so owned shall be disregarded.

 

SECTION 2.11. Temporary Notes. Until permanent Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Definitive Notes upon receipt of an Issuer Order in the form of an Officers’ Certificate of the Issuer. Such Officers’ Certificate shall specify the amount of temporary Definitive Notes to be authenticated and the date on which the temporary Definitive Notes are to be authenticated. Temporary Definitive Notes shall be substantially in the form of permanent Definitive Notes but may have variations that the Issuer considers appropriate for temporary Definitive Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate upon receipt of an Issuer Order pursuant to Section 2.2 permanent Definitive Notes in exchange for temporary Definitive Notes. Holders of temporary Definitive Notes shall be entitled to all of the benefits of this Indenture.

 

SECTION 2.12. Cancellation. The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent, and no one else, shall cancel and, at the written direction of the Issuer, shall dispose of (subject to the record retention requirements of the Exchange Act) all Notes surrendered for transfer, exchange, payment or cancellation; provided, however, that the Trustee may, but shall not be required to, destroy such canceled Notes. Subject to Section 2.8, the Issuer may not issue new Notes to replace Notes that it has paid or delivered to the Trustee for cancellation. If the Issuer shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.12.

 

SECTION 2.13. Defaulted Interest. If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest, plus (to the extent lawful) any interest payable on the defaulted interest, to the Holders thereof as of the original Record Date; provided, however, if such default in payment of interest continues for 30 days, the Issuer shall (in the case of Definitive Notes) establish a subsequent special Record Date, which date shall be the fifteenth day next preceding the date fixed by the Issuer for the payment of defaulted interest. If no special Record Date is required to be established pursuant to the immediately preceding sentence, (i) in the case of Definitive Notes, Holders of record on the original Record Date shall be entitled to such payment of defaulted interest and any such interest payable on the defaulted interest and (ii) in the case of Global Notes, Holders on the Default Interest Payment Date (as defined in the next sentence) shall be entitled to such defaulted interest and any such interest payable on the defaulted interest. The Issuer shall notify the Trustee and the Principal Paying Agent in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment (a “Default Interest Payment Date”), and at the same time the Issuer shall deposit with the Trustee or the Principal Paying Agent 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 or the Principal Paying Agent 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 in this Section 2.13; provided, however, that in no event shall the Issuer deposit monies proposed to be paid in respect of defaulted interest later than 10:00 a.m. London time on the Business Day immediately preceding the proposed Default Interest Payment Date with respect to defaulted interest to be paid on the Note. In the case of Definitive Notes, at least 15 days before the subsequent special Record Date, if applicable, the Issuer shall deliver to Holders in accordance with Section 11.1 a notice that states the subsequent special Record Date, the payment date and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid. In the case of Global Notes, at least 15 days before the Default Interest Payment Date, the Issuer shall deliver to Holders in accordance with Section 11.1 a notice that states the Default Interest Payment Date, the payment date and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid.

 

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SECTION 2.14. ISINs and Common Codes. The Issuer in issuing the Notes may use ISINs or Common Codes, and if so, the Trustee shall use the ISINs and Common Codes in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of such numbers or codes printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Issuer shall promptly notify the Trustee in writing of any change in any ISIN or Common Code.

 

SECTION 2.15. Deposit of Moneys. No later than 10:00 a.m. (London time) on each interest payment date and the Maturity Date, the Issuer shall have deposited with the Trustee or its designated Paying Agent (which shall be the Principal Paying Agent unless otherwise notified to the Issuer by the Trustee) in immediately available funds money sufficient to make cash payments, if any, due on such interest payment date or Maturity Date, as the case may be, on all Notes then outstanding. Such payments shall be made by the Issuer in a timely manner which permits a Paying Agent (including the Principal Paying Agent) to remit payment to the Holders on such Interest Payment Date or Maturity Date, as the case may be.

 

SECTION 2.16. Certain Matters Relating to Global Notes. (a) Members of or participants in a Clearing Agency (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Common Depositary or its nominee, or under the Global Note, and the Common Depositary or its nominee may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Common Depositary or its nominees, or impair, as between the Clearing Agency and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Note.

 

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(b)            The holder of a beneficial interest in any Global Note may grant proxies and otherwise authorize any person, including the Clearing Agency and their Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

 

SECTION 2.17. Interest. Interest accrued on the Notes will be payable semi-annually in arrears on March 15 and September 15, commencing March 15, 2020, to Holders of record on the immediately preceding March 1 and September 1. Interest will be calculated on the aggregate nominal amount of Notes outstanding. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable.

 

Interest accrued on all Notes then outstanding will be payable in cash.

 

ARTICLE III

 

REDEMPTION

 

SECTION 3.1. Optional Redemption. The Notes may be redeemed, as a whole or from time to time in part, upon the terms and at the redemption prices set forth in the Notes. Any redemption pursuant to this Section 3.1 shall be made pursuant to the provisions of this Article III. The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

SECTION 3.2. Notices to Trustee. If the Issuer elects to redeem the Notes pursuant to Paragraphs 7 or 8 of such Notes, it shall notify the Trustee and the Principal Paying Agent in writing of the Redemption Date and the principal amount of Notes to be redeemed at least 10 days but not more than 60 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee). The Issuer shall give notice of redemption as required under the relevant paragraph of the Notes pursuant to which such Notes are being redeemed.

 

SECTION 3.3. Selection of Notes to Be Redeemed. If less than all of the Notes are to be redeemed pursuant to its terms or the terms of this Indenture at any time, selection of such Notes for redemption will be made by the Trustee or the relevant Registrar in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed, and in compliance with the requirements of each Clearing Agency, or if such Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through a Clearing Agency or such Clearing Agency prescribes no method of selection, on a pro rata basis, by lot; provided, however, that no Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part. In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 10 nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding Notes not previously called for redemption.

 

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SECTION 3.4. Notice of Redemption. At least 10 days but not more than 60 days before a Redemption Date, the Issuer shall deliver to Holders in accordance with Section 11.1, a notice of redemption. Any redemption and notice may, at the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent, and such notice may state that, in the Issuer’s discretion, the redemption date may be delayed without any additional notice until such time as any or all such conditions shall have been satisfied. At the Issuer’s request made at least 10 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee), the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided, however, that the Issuer shall deliver to the Trustee an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the following items. Each notice for redemption shall identify the Notes to be redeemed and shall state:

 

(a)            the Redemption Date;

 

(b)            the Redemption Prices and the amount of accrued and unpaid interest, if any, and Additional Amounts, if any, to be paid (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, due on the relevant interest payment date);

 

(c)            the Record Date;

 

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

 

(e)            that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any;

 

(f)             that, unless the Issuer defaults in making the redemption payment, interest and Additional Amounts, if any, on Notes called for redemption cease to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Notes redeemed;

 

(g)            (i) if any Global Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, interest and Additional Amounts, if any, shall cease to accrue on the portion called for redemption, and upon surrender of such Global Note, the Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unredeemed portion, will be returned and (ii) if any Definitive 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 Definitive Note, a new Definitive Note or Notes in aggregate principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof, upon cancellation of the original Note;

 

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(h)            if fewer than all the Notes are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption;

 

(i)             the paragraph of the Notes pursuant to which the Notes are to be redeemed;

 

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

 

(k)            whether the redemption is conditional on any events and, if so, a detailed explanation of such conditions.

 

SECTION 3.5. Effect of Notice of Redemption. Once notice of redemption is given in accordance with Section 3.4, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any. Upon surrender to the Trustee or Paying Agent, such Notes called for redemption shall be paid at the Redemption Price (which shall include accrued and unpaid interest thereon, if any, and Additional Amounts, if any, to the Redemption Date), but (in the case of Definitive Notes) installments of interest, the maturity of which is on or prior to the Redemption Date, shall be payable to Holders of record at the close of business on the relevant Record Dates.

 

SECTION 3.6. Deposit of Redemption Price. No later than 10:00 a.m. (London time) on the Redemption Date, the Issuer shall deposit with the Trustee or its designated Paying Agent (which shall be the Principal Paying Agent unless otherwise notified to the Issuer by the Trustee) an amount of cash in euros sufficient to pay the Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any, of all Notes to be redeemed on that date. The Paying Agent (including the Principal Paying Agent) shall promptly return to the Issuer any cash in euros so deposited which is not required for that purpose upon the written request of the Issuer.

 

If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the payment of such Redemption Price plus accrued and unpaid interest, if any, and Additional Amounts, if any, interest and Additional Amounts, if any, on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Notes are presented for payment. With respect to Definitive Notes, if a Definitive Note is redeemed on or after an interest Record Date but on or prior to the related interest payment date, then any accrued and unpaid interest and Additional Amounts, 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 Issuer to comply with the preceding paragraph, interest and Additional Amounts, if any, shall be paid on the unpaid principal, from the Redemption Date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.1.

 

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SECTION 3.7. Notes Redeemed in Part. Upon surrender and cancellation of a Definitive Note that is redeemed in part, the Issuer shall execute and upon receipt of an Issuer Order the Trustee shall authenticate for the Holder (at the Issuer’s expense) a new Definitive Note equal in principal amount to the unredeemed portion of the Definitive Note surrendered and canceled; provided, however, that each such Definitive Note shall be in a principal amount at maturity of €100,000 or an integral multiple of €1,000 in excess thereof. Upon surrender of a Global Note that is redeemed in part, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the Global Note surrendered; provided, however, that each such Global Note shall be in a principal amount at maturity of €100,000 or an integral multiple of €1,000 in excess thereof.

 

ARTICLE IV

 

COVENANTS

 

SECTION 4.1. Payment of Notes. (a) The Issuer shall pay the principal, premium, if any, interest and Additional Amounts, if any, on the Notes in the manner provided in such Notes and this Indenture. An installment of principal of or interest on the Notes shall be considered paid on the date it is due if the Trustee or the Paying Agent (including the Principal Paying Agent) holds prior to 10:00 a.m. London time on that date money deposited by the Issuer in immediately available funds and designated for, and sufficient to pay the installment in full and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture or the Priority Agreement.

 

(b)            The Issuer shall pay, to the extent such payments are lawful, interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and on overdue installments of interest (without regard to any applicable grace periods) and on any Additional Amounts from time to time on demand at the rate borne by the Notes plus 1.0% per annum. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

SECTION 4.2. Maintenance of Office or Agency. The Issuer shall maintain the office or agency (which office may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) required under Section 2.3 where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 11.1. The Issuer and each Guarantor hereby initially designates the office of Smurfit Kappa Packaging LLC, located at 1301 International Parkway, Suite 550, Sunrise, Florida 33323, as its office or agency outside Ireland as required under Section 2.3 hereof.

 

SECTION 4.3. [Intentionally omitted]

 

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SECTION 4.4. [Intentionally omitted]

 

SECTION 4.5. Corporate Existence. Except as otherwise permitted by Article V, each of SKA and the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its respective corporate existence and the corporate, partnership, limited liability or other existence of each of SKA’s Subsidiaries in accordance with the respective organizational documents (as the same may be amended from time to time) of each such Person and the rights (charter and statutory) of the Issuer and each of SKA’s Subsidiaries; provided, however, that SKA shall not be required to preserve any such right, or the corporate, partnership, limited liability or other existence of any of SKA’s Subsidiaries (other than the Issuer), if the Board of Directors of SKA shall determine that the preservation thereof is no longer desirable in the conduct of the business of SKA and each of its Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be, adverse in any material respect to the Holders.

 

SECTION 4.6. Payment of Taxes and Other Claims. SKA shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all material taxes, assessments and governmental charges levied or imposed upon it or any of its Subsidiaries or upon the income, profits or property of it or any of its Subsidiaries and (ii) all lawful claims for labor, materials and supplies which, in each case, if unpaid, might by law become a material liability or Restricted Lien (other than a Permitted Lien) upon the property of it or any of its Subsidiaries; provided, however, that SKA shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate provision has been made in accordance with IFRS.

 

SECTION 4.7. Maintenance of Properties and Insurance. (a) SKA shall cause all material properties owned by or leased by it or any of its Subsidiaries useful and necessary to the conduct of its business or the business of any of its Subsidiaries to be improved or maintained and kept in normal condition, repair and working order and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in its judgment may be necessary, so that the business carried on in connection therewith may be properly conducted at all times; provided, however, that nothing in this Section 4.7 shall prevent SKA or any of its Subsidiaries from discontinuing the use, operation or maintenance of any of such properties, or disposing of any of them, if such discontinuance or disposal is, in the judgment of the Board of Directors of SKA or of the board of directors of any Subsidiary of SKA concerned, or of an officer (or other agent employed by SKA or of any of its Subsidiaries) of SKA or any of its Subsidiaries having managerial responsibility for any such property, desirable in the conduct of the business of SKA or any Subsidiary of SKA, and if such discontinuance or disposal is not adverse in any material respect to the Holders.

 

(b)            To the extent available at commercially reasonable rates, SKA shall maintain, and shall cause its Subsidiaries to maintain, insurance with responsible carriers against such risks and in such amounts, and with such deductibles, retentions, self-insured amounts and co-insurance provisions, as are customarily carried by similar businesses of similar size.

 

SECTION 4.8. Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries. SKA will not cause or permit any of its Subsidiaries that is not a Guarantor or the Issuer, directly or indirectly, to guarantee, assume or in any other manner become liable for the payment of any Indebtedness under the Existing Senior Notes or any other Public Indebtedness, unless, subject to the limitations set forth in this Indenture, such Subsidiary executes and delivers a supplemental indenture to this Indenture providing for a Guarantee of payment of the Notes by such Subsidiary on the same terms as the guarantee of such Indebtedness within 10 Business Days thereof; provided that if such Indebtedness is by its terms expressly subordinated to the Notes or any Guarantee, any such guarantee, assumption or other liability of such Subsidiary with respect to such Indebtedness shall be subordinated to such Subsidiary’s Guarantee of the Notes at least to the same extent as such Indebtedness is subordinated to the Notes or any other Guarantee; provided that this covenant shall not be applicable to any guarantee of intercompany Indebtedness where the lender under such Indebtedness is party to the Priority Agreement (but only for so long as the Priority Agreement applies to the Notes).

 

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The obligations in the foregoing paragraph will not be operative to the extent (1) the Notes have an Investment Grade Rating from the Rating Agencies and (2) none of the Existing Senior Notes benefit from a guarantee from such Subsidiary.

 

To the extent any Subsidiary of SKA is required to provide a Guarantee, such Guarantee will be limited as necessary to recognize certain defenses generally available to guarantors (including those that relate to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally) or other considerations under applicable law.

 

SECTION 4.9. Compliance with Laws. SKA shall, and shall cause its Subsidiaries to, comply with all applicable statutes, rules, regulations, orders of the relevant jurisdiction in which they are incorporated or organized or in which they carry on business, all political subdivisions thereof, and of any relevant governmental regulatory authority, in respect of the conduct of their respective businesses and the ownership of their respective properties, except for such noncompliances as would not in the aggregate have a material adverse effect on the financial condition or results of operations of SKA and its Subsidiaries taken as a whole.

 

SECTION 4.10. Negative Pledge. SKA will not, and will not permit any of its Subsidiaries to, secure any Indebtedness for money borrowed by placing a Lien (other than a Permitted Lien) on any Principal Property now or hereafter owned or leased by SKA or any Subsidiary of SKA or on any shares of stock of any Subsidiary of SKA (a “Restricted Lien”) without equally and ratably securing (or securing on a senior basis, in the case of a Lien securing Indebtedness that is by its terms expressly subordinated to the Notes or any Guarantee) all of the Notes, unless after giving effect thereto the aggregate principal amount of all such Indebtedness secured by a Restricted Lien then outstanding would not exceed an amount equal to 15% of Consolidated Net Tangible Assets. The restrictions set forth in the preceding sentence will not apply to any Permitted Lien, and all Indebtedness secured by a Permitted Lien shall be excluded in computing the amount of Indebtedness secured by a Lien outstanding for purposes of this covenant.

 

Any Lien created for the benefit of the holders of the Notes pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien relating to such Indebtedness that gave rise to the obligation to so secure the Notes.

 

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SECTION 4.11. Waiver of Stay; Extension or Usury Laws. The Issuer and each Guarantor covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer or any Guarantor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture, and (to the extent that it may lawfully do so) the Issuer and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants that it will not 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 had been enacted.

 

SECTION 4.12. [Intentionally omitted]

 

SECTION 4.13. [Intentionally omitted]

 

SECTION 4.14. [Intentionally omitted]

 

SECTION 4.15. [Intentionally omitted]

 

SECTION 4.16. [Intentionally omitted]

 

SECTION 4.17. Score. (a) For so long as any Notes are outstanding, the Issuer will provide to each of the Trustee and the Holders of Notes and potential purchasers of Notes:

 

(1)            within 120 days after the end of SKG’s fiscal year, annual reports containing the following information: (a) audited consolidated balance sheet of SKG as of the end of the two most recent fiscal years and audited consolidated income statements and statements of cash flow of SKG for the two most recent fiscal years, including complete footnotes to such financial statements and the report of the independent auditors on the financial statements; (b) an operating and financial review of the audited financial statements, including a discussion of the results of operations, financial condition and liquidity and capital resources, and a discussion of material commitments and contingencies and critical accounting policies; (c) a description of the industry, business, management and shareholders of SKG, all material affiliate transactions, Indebtedness and material financing arrangements and a description of all material contractual arrangements, including material debt instruments; and (d) risk factors and material recent developments;

 

(2)            within 60 days following the end of each of the first three fiscal quarters in each fiscal year of SKG, quarterly reports containing the following information: (a) an unaudited condensed consolidated balance sheet as of the end of such quarterly period and unaudited condensed statements of income and cash flow for the quarterly and year-to-date periods ending on the unaudited condensed balance sheet date, and the comparable prior year periods for SKG, together with condensed footnote disclosure; (b) an operating and financial review of the unaudited financial statements, including a discussion of the consolidated financial condition and results of operations of SKG and any material change between the current quarterly period and the corresponding period of the prior year; (c) material developments in the business of SKG and its Subsidiaries; (d) financial developments and trends in the business in which SKG and its Subsidiaries are engaged; and (e) material recent developments; and

 

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(3)            promptly after the occurrence of (a) any senior management change at SKG; (b) any change in the auditors of SKG; (c) any resignation of a member of the Board of Directors of SKG as a result of a disagreement with SKG; (d) the entering into an agreement that will result in a Change of Control; or (e) any material events that SKG or any of its Subsidiaries announces publicly, in each case, a report containing a description of such events.

 

(b)            For so long as any Notes are outstanding, the Issuer will provide to the Trustee such other information as SKG is required to make publicly available under the requirements of Euronext Dublin or the London Stock Exchange as a result of having its ordinary shares admitted for trading on such exchanges. Upon complying with the public reporting requirements of Euronext Dublin or the London Stock Exchange (regardless of whether SKG’s ordinary shares are admitted for trading on either such exchange), provided that such requirements include an obligation to prepare and make publicly available annual reports, information, documents and other reports with Euronext Dublin or London Stock Exchange, the Issuer will be deemed to have complied with the provisions contained in clauses (1) through (3) of Section 4.17(a).

 

(c)            Notwithstanding the foregoing, the Issuer will be deemed to have provided such information to the Trustee, the Holders of the Notes and prospective purchasers if such information referenced above in clauses (a)(1) through (a)(3) and (b) of this Section 4.17 has been posted on SKG’s website.

 

SECTION 4.18. [Intentionally omitted]

 

SECTION 4.19. Change of Control Repurchase Event. (a) If a Change of Control Repurchase Event occurs, each Holder of the Notes will have the right to require the Issuer to repurchase all or any part (equal to €100,000 and integral multiples of €1,000 in excess thereof in the case of Notes that have denominations larger than €100,000) of that Holder’s Notes pursuant to an offer (the “Change of Control Offer”) on the terms set forth in this Indenture. In the Change of Control Offer, the Issuer will offer a payment (the “Change of Control Payment”) in cash equal to 101% of the aggregate principal amount of each of the Notes repurchased plus accrued and unpaid interest and Additional Amounts, if any, thereon, to the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Issuer will mail a notice to each Holder and the Trustee describing the transaction or transactions that constitute the Change of Control Repurchase Event and offering to repurchase Notes on a date (the “Change of Control Payment Date”) specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by this Indenture and described in such notice. The Issuer will comply with the requirements of Section 14(e) of the Exchange Act to the extent applicable and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.19 by virtue of such conflict.

 

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

 

(1)            accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;

 

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

 

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

 

(c)            The Paying Agent will promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes and the Trustee or the relevant Registrar will, upon receipt of an Issuer Order, promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of €100,000 or an integral multiple of €1,000 in excess thereof.

 

(d)            In the case of Definitive Notes, if the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amounts, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest or Additional Amounts will be payable to Holders who tender pursuant to the Change of Control Offer; in the case of Global Notes, the Issuer will pay accrued and unpaid interest to the Change of Control Payment Date to the Holder on such date.

 

(e)            The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date; provided, that if and for so long as the Notes are listed on Euronext Dublin and the rules of Euronext Dublin so require, the Issuer will give notice with respect to the results of the Change of Control Offer to the Companies Announcement Office of Euronext Dublin.

 

(f)            This Section 4.19 will be applicable regardless of whether any other provisions of this Indenture are applicable.

 

(g)            The Issuer will not be required to make a Change of Control Offer following a Change of Control Repurchase Event if (i) an Affiliate of the Issuer or a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with this Section 4.19 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) a notice of redemption for all of the outstanding Notes has been given pursuant to this Indenture under Section 3.4 unless and until there is a default in the payment of the applicable redemption price, plus accrued and unpaid interest to the proposed redemption date. Notwithstanding the foregoing, a Change of Control Offer may be made in advance of a Change of Control Repurchase Event, conditional upon the Change of Control, so long as a definitive agreement has been executed that contains terms and provisions that would otherwise result in a Change of Control upon completion of the transactions contemplated thereby.

 

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(h)            If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any Affiliate or third party making a Change of Control Offer in lieu of the Issuer as described in the foregoing Section 4.19(g) hereof, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such Affiliate or third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the date of redemption.

 

SECTION 4.20. Additional Amounts. (a) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on the Notes or the Guarantees is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the Principal Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Principal Paying Agent whether such payment of principal, premium, if any, or interest on the Notes (whether or not in the form of Definitive Notes) or any Guarantee shall be made to the Holders without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of Taxes is then required by law.

 

(b)            If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes or the Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”).

 

(c)            The Payor and each Guarantor or successor Guarantor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon written request, the Payor and each Guarantor will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per €1,000 principal amount of the Notes. Copies of such documentation will be available for inspection during ordinary business hours at the office of the Trustee by the Holders of the Notes upon request.

 

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(d)            Wherever in this Indenture or the Notes there are mentioned, in any context, (i) the payment of principal, (ii) purchase prices in connection with a purchase of Notes, (iii) interest or (iv) any other amount payable on or with respect to any of the Notes or the Guarantees, such reference shall be deemed to include payment of Additional Amounts as described in this Indenture and the Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

(e)            The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without gross negligence, willful default or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.20.

 

(f)            Obligations under this Section 4.20 will survive any termination, defeasance or discharge of this Indenture.

 

SECTION 4.21. Payment of Non-Income Taxes and Similar Charges. The Payor and each Guarantor or successor Guarantor will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of any Notes or any other document or instrument referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside Ireland, the United States or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes. Obligations under this Section 4.21 will survive any termination, defeasance or discharge of this Indenture.

 

SECTION 4.22. Compliance Certificate; Notice of Default. SKA shall deliver to the Trustee, within 120 days after the end of each fiscal year and upon reasonable request by the Trustee, an Officers’ Certificate stating that a review of the activities of SKA and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether SKA has kept, observed, performed and fulfilled, and has caused each of its Subsidiaries to keep, observe, perform and fulfill its obligations under this Indenture and further stating, as to each such Officer signing such certificate, that, to the best of his or her knowledge, SKA during such preceding fiscal year has kept, observed, performed and fulfilled, and has caused each of its Subsidiaries to keep, observe, perform and fulfill each and every such covenant (as applicable) contained in this Indenture and no Default occurred during such year and at the date of such certificate there is no Default which has occurred and is continuing or, if such signers do know of such Default, the certificate shall describe its status, with particularity and that, to the best of his or her knowledge, no event has occurred and remains by reason of which payments on the account of the principal of or interest, if any, or Additional Amounts, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action each is taking or proposes to take with respect thereto. The Officers’ Certificate shall also notify the Trustee should the Issuer elect to change the manner in which it fixes its fiscal year end. Upon becoming aware of, and as of such time that the Issuer should reasonably have become aware of, a Default or Event of Default, the Issuer also shall promptly deliver to the Trustee written notice of any events which would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.

 

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SECTION 4.23. [Intentionally omitted]

 

SECTION 4.24. [Intentionally omitted]

 

SECTION 4.25. [Intentionally omitted]

 

SECTION 4.26. [Intentionally omitted]

 

SECTION 4.27. Further Instruments and Acts. Upon request of the Trustee, the Issuer and each Guarantor will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.

 

ARTICLE V

 

SUCCESSOR CORPORATION

 

SECTION 5.1. Consolidation, Merger or Sale of Assets. The Issuer may not, directly or indirectly: (a) consolidate or merge with or into another Person (whether or not the Issuer is the surviving corporation); or (b) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:

 

(1)            either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, conveyance, lease or other disposition shall have been made (the “Successor Issuer”) is a company organized or existing under the laws of the United States, any state thereof or the District of Columbia or any member of the European Union on the Issue Date;

 

(2)            the Successor Issuer (if other than the Issuer) assumes all the obligations of the Issuer under the Notes, the Indenture and the Priority Agreement pursuant to agreements reasonably satisfactory to the Trustee;

 

(3)            immediately after such transaction, no Default or Event of Default exists; and

 

(4)            each Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations in respect of the Indenture and the Notes (unless such Guarantee shall be released in connection with the transaction and otherwise in compliance with the Indenture).

 

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SKA may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not SKA is the surviving corporation); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of SKA and its Subsidiaries taken as a whole, in one or more related transactions, to another Person (other than the Issuer or another Guarantor) unless (a) SKA (or the Person formed by or surviving any such consolidation or merger (if other than SKA) or to which such sale, assignment, transfer, conveyance, lease or other disposition shall have been made (the “SKA Successor”)) shall have by supplemental indenture confirmed its Guarantee shall continue to apply to the Issuer’s obligations in respect of the Indenture and the Notes or, in the case of a SKA Successor, expressly assumed all the obligations of SKA under its Guarantee under the Indenture and the Notes; (b)(i) either SKA is the surviving company; or (ii) the SKA Successor is a company organized or existing under the laws of the United States, any state thereof or the District of Columbia, or any member of the European Union on the Issue Date; and (c) immediately after such transaction, no Default or Event of Default exists.

 

For purposes of this covenant, the sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of a Person, which properties and assets, if held by such Person instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Person on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Person.

 

SECTION 5.2. Successor Corporation Substituted. If any such consolidation, merger, sale, assignment, transfer, conveyance or disposition is consummated without causing an Event of Default, then the Successor Issuer or SKA Successor, as applicable, will succeed to, and be substituted for, and may exercise every right and power of, the Issuer, in the case of a Successor Issuer or SKA, in the case of a SKA Successor, under this Indenture with the same effect as if such Successor Issuer had been named as the Issuer herein or as if such SKA Successor had been named as SKA herein, as applicable, and thereafter (except in the case of a sale, assignment, transfer, lease, conveyance or other disposition) the predecessor corporation will be relieved of all further obligations and covenants under this Indenture and the Notes.

 

ARTICLE VI

 

DEFAULT AND REMEDIES

 

SECTION 6.1. Events of Default. Whenever used herein with respect to the Notes, “Event of Default” means any one of the following events which shall have occurred and be continuing:

 

(1)            a default for 30 days in the payment when due of interest on, or Additional Amounts with respect to, the Notes;

 

(2)            a default in payment when due of the principal of, or premium, if any, on the Notes;

 

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(3)            a failure by SKA or any of its Subsidiaries for 60 days after notice by the Trustee or by the Holders of at least 25% in principal amount of the Notes to comply with any of the other agreements in this Indenture;

 

(4)            a default under any mortgage, indenture or instrument under which there is issued and outstanding any Indebtedness for money borrowed by SKA or any of its Subsidiaries (or the payment of which is guaranteed by SKA or any of its Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the date of this Indenture, if that default:

 

(a)            is caused by a failure to pay principal at the final stated maturity of such Indebtedness (after giving effect to any applicable grace period provided in the Indebtedness) (a “Payment Default”); or

 

(b)            results in the acceleration of such Indebtedness prior to its express maturity, and in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates €50.0 million or more;

 

(5)            (A) a court having jurisdiction in the premises enters a decree or order for (i) relief in respect of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) appointment of a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary or (iii) the winding up or liquidation of the affairs of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; or (B) the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary (i) commences a voluntary case (including taking any action for the purpose of winding up) under any applicable bankruptcy, insolvency, examination, court protection or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary or (iii) effects any general assignment for the benefit of creditors.

 

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SECTION 6.2. Acceleration. In the case of an Event of Default arising under Section 6.1(5) hereof, the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all the Notes shall become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee (upon request of Holders of at least 25% in principal amount of Notes then outstanding) shall by notice in writing to the Issuer or the Holders of at least 25% in principal amount of the then outstanding Notes may by notice in writing to the Issuer and the Trustee, declare all Notes to be due and payable, and any such notice shall specify the respective Event of Default and that such notice is a “notice of acceleration”, and the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all the Notes shall become immediately due and payable. In the event of any Event of Default specified in Section 6.1(4), such Event of Default and all consequences thereof (including, without limitation, any acceleration or resulting payment default) shall be annulled, waived and rescinded automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose, (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged, (y) the creditors on such Indebtedness have rescinded or waived the acceleration, notice or action, as the case may be, giving rise to such Event of Default or (z) if the default that is the basis for such Event of Default has been cured.

 

SECTION 6.3. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or, premium, if any, interest or Additional Amounts, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

SECTION 6.4. The Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto.

 

SECTION 6.5. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Notes is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent or subsequent assertion or employment of any other appropriate right or remedy.

 

SECTION 6.6. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Notes.

 

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SECTION 6.7. Waiver of Past Defaults. Subject to Section 9.2, at any time after a declaration of acceleration with respect to the Notes as described in Section 6.2, the Holders of at least a majority in principal amount of the outstanding Notes by written notice to the Trustee, may, on behalf of the Holders of all the Notes, waive any existing Default or Event of Default (except with respect to a continuing Default or Event of Default in the payment of principal, premium, interest, Additional Amounts, if any, and other monetary obligations on the Notes) and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, interest, Additional Amounts, if any, and other monetary obligations on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. Such waiver shall not excuse a continuing Default or Event of Default in the payment of interest, premium, if any, principal or Additional Amounts, if any, on such Note held by a non-consenting Holder, or in respect of a covenant or a provision which cannot be amended or modified without the consent of all Holders. The Issuer shall deliver to the Trustee an Officers’ Certificate stating that the requisite percentage of Holders has consented to such waiver and attaching copies of such consents. When a Default or Event of Default is waived, it is cured and ceases.

 

SECTION 6.8. Control by Majority. Subject to Section 2.10, the Holders of not less than a majority in principal amount of the outstanding Notes may, by written notice to the Trustee, direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. Subject to Section 7.1, however, the Trustee may refuse to follow any direction that conflicts with any law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of another Holder of Notes, or that would involve the Trustee in liability or expense; provided, however, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Prior to taking any action under this Indenture, the Trustee will be entitled to indemnification or security to its satisfaction against all losses, liabilities, costs and expenses incurred by it in taking or not taking such action.

 

SECTION 6.9. Limitation on Suits. Except to enforce the right to receive payment of principal, premium, if any, interest when due and Additional Amounts, if any, no Holder may pursue any remedy with respect to this Indenture or the Notes, unless:

 

(1)            such Holder has previously given the Trustee notice that an Event of Default is continuing;

 

(2)            Holders of at least 25% in principal amount of the outstanding Notes have requested the Trustee to pursue the remedy;

 

(3)            such Holders have offered the Trustee indemnity or security to its satisfaction, against any loss, liability or expense;

 

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(4)            the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of such security or indemnity; and

 

(5)            the Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.

 

SECTION 6.10. Collection Suit by Trustee. If an Event of Default in payment of principal, premium, if any, interest or Additional Amounts, if any, specified in clause (1) or clause (2) of Section 6.1 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or any other obligor on the Notes for the whole amount of principal and accrued interest remaining unpaid and Additional Amounts, if any, together with interest on overdue principal and, to the extent that payment of such interest is lawful, interest on overdue installments of interest, in each case at the rate per annum borne by the Notes and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6.

 

SECTION 6.11. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or its property or other obligor on the Notes, its creditors and its property and shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and any custodian in any such judicial proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6 hereof 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 which the Holders of the Notes may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

 

SECTION 6.12. Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:

 

First: to the Trustee, the Agents and their agents and attorneys for amounts due under Section 7.6, including payment of all compensation, fees, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, interest and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, interest and Additional Amounts, if any, respectively; and Third: to the Issuer or any other obligor on the Notes, as their interests may appear, or as a court of competent jurisdiction may direct.

 

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The Trustee, upon prior notice to the Issuer, may fix a record date and a payment date for any payment to Holders pursuant to this Section 6.12; provided that the failure to give any such notice shall not affect the establishment of such record date or payment date for Holders pursuant to this Section 6.12.

 

SECTION 6.13. Restoration of Rights and Remedies. If the Trustee or any Holder of any Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of Notes shall continue as though no such proceeding had been instituted.

 

SECTION 6.14. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes.

 

SECTION 6.15. Additional Payments. In the case of any Event of Default occurring by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Issuer in bad faith with the intention of avoiding payment of the premium that the Issuer would have had to pay if the Issuer then had elected to redeem the Notes pursuant to the optional redemption provisions of this Indenture or was required to repurchase the Notes, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of the Notes.

 

ARTICLE VII

 

TRUSTEE

 

SECTION 7.1. Duties of Trustee. (a) If an Event of Default actually known to a Trust Officer of the Trustee 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 their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request of any of the Holders of Notes, unless they shall have offered to the Trustee indemnity or security to its satisfaction against any loss, liability, cost or expense.

 

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(b)            Except during the continuance of an Event of Default actually known to the Trustee:

 

(1)            The Trustee and the Agents will perform only those duties as are specifically set forth herein and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Agents.

 

(2)            In the absence of bad faith on their part, the Trustee and the Agents may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions and such other documents delivered to them pursuant to Section 11.3 furnished to the Trustee or Agent and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are required to be furnished to the Trustee or the Agents, the Trustee or the Agents, as applicable, shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

(c)            The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own bad faith or willful misconduct, except that:

 

(1)            This paragraph does not limit the effect of subsection (b) of this Section 7.1.

 

(2)            Neither the Trustee nor Agent shall be liable for any error of judgment made in good faith by a Trust Officer of such Trustee or Agent, unless it is proved that the Trustee or such Agent was grossly 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 6.8.

 

(d)            No provision of this Indenture shall require the Trustee or any Agent to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties hereunder or to take or omit to take any action under this Indenture or take any action at the request or direction of Holders if it shall have reasonable grounds for believing that repayment of such funds is not assured to it or it does not receive an indemnity or security satisfactory to it in its sole discretion against such risk, liability, loss, fee or expense which might be incurred by it in compliance with such request or direction.

 

(e)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to subsections (a), (b), (c) and (d) of this Section 7.1.

 

(f)            Neither the Trustee nor the Agents shall be liable for interest on any money received by it except as the Trustee and any Agent may agree in writing with the Issuer. Money held by the Trustee in trust or any Agent need not be segregated from other funds except to the extent required by law.

 

(g)            Any provision hereof relating to the conduct or affecting the liability of or affording protection to the Trustee or Agent shall be subject to the provisions of this Section 7.1.

 

(h)            The rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified, are extended to, and shall be enforceable by the Trustee in each of its capacities it which it may serve, and to each Agent, custodian and other person employed to act hereunder.

 

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SECTION 7.2. Rights of Trustee. Subject to Section 7.1:

 

(a)            The Trustee and each Agent may rely conclusively on and shall be protected from acting or refraining from acting based upon any document believed by them to be genuine and to have been signed or presented by the proper person. Neither the Trustee nor any Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document, but the Trustee or its Agent, as the case may be, in its discretion, may make reasonable further inquiry or investigation into such facts or matters stated in such document and if the Trustee or its Agent as the case may be, shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, at reasonable times during normal business hours, personally or by agent or attorney. The Trustee shall not be deemed to have notice or any knowledge of any matter (including Defaults or Events of Default) unless a Trust Officer assigned to and working in the Trustee’s Trust & Security Services office has actual knowledge thereof or unless written notice thereof is received by the Trustee, attention: Trust & Security Services and such notice references the Notes generally, the Issuer or this Indenture.

 

(b)            Any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate or Issuer Order and any resolution of the Board of Directors of the Issuer, as the case may be, may be sufficiently evidenced by a Board Resolution.

 

(c)            Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both, which shall conform to the provisions of Sections 11.3 and 11.4. Neither the Trustee nor any Agent shall be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.

 

(d)           The Trustee and any Agent may act through their attorneys and agents and shall not be responsible for the misconduct or negligence of any agent (other than an agent who is an employee of the Trustee or such Agent) appointed with due care.

 

(e)            The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers conferred upon it by this Indenture; provided, however, that the Trustee’s conduct does not constitute willful misconduct, gross negligence or bad faith.

 

(f)            The Trustee or any Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

(g)           Subject to Section 9.2, the Trustee may (but shall not be obligated to), 47 without the consent of the Holders, give any consent, waiver or approval required by the terms hereof, but shall not without the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding (i) give any consent, waiver or approval or (ii) agree to any amendment or modification of this Indenture, in each case, that shall have a material adverse effect on the interests of any Holder. The Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any consent, waiver, approval, amendment or modification shall have a material adverse effect on the interests of any Holder.

 

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SECTION 7.3. Individual Rights of Trustee. The Trustee or any Agent in its respective individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or its respective Affiliates with the same rights it would have if it were not the Trustee or an Agent. However, in the event that the Trustee acquires any conflicting interest, it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee or resign. Any Agent may do the same with like rights. The Trustee must comply with Sections 7.9 and 7.10.

 

SECTION 7.4. Trustee’s Disclaimer. The Trustee and the Agents shall not be responsible for and make no representation as to the validity, effectiveness, correctness or adequacy of this Indenture, any Guarantee, the Priority Agreement or the offering materials related to this Indenture or the Notes; it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision hereof; it shall not be responsible for the use or application of any money received by any Agent and it shall not be responsible for any statement or recital herein of the Issuer, or any document issued in connection with the sale of Notes or any statement in the Notes other than the Trustee’s certificate of authentication.

 

SECTION 7.5. Notice of Default. If an Event of Default occurs and is continuing and a Trust Officer of the Trustee receives actual notice of such event, the Trustee shall mail to each Holder, as their names and addresses appear on the list of Holders described in Section 2.5, notice of the uncured Default or Event of Default within 60 days after the Trustee receives such notice. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, interest or Additional Amounts, if any, on any Note, including the failure to make payment on the Change of Control Payment Date pursuant to a Change of Control Offer, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interest of the Holders.

 

SECTION 7.6. Compensation and Indemnity. The Issuer shall pay to the Trustee and the Agents from time to time such reasonable compensation as the Issuer and the Trustee shall from time to time agree upon in writing for its acceptance of this Indenture and services hereunder. The Trustee’s and the Agents’ compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and the Agent upon request for all reasonable disbursements, expenses and advances (including reasonable fees and expenses of counsel) incurred or made by it in addition to the compensation for their services, except any such disbursements, expenses and advances as may be attributable to the Trustee’s or any Agent’s gross negligence, willful misconduct or bad faith. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and Agents’ accountants, experts and counsel and any taxes or other expenses incurred by a trust created pursuant to Section 8.4 hereof.

 

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The Issuer agrees to pay the reasonable fees and expenses of the Trustee’s legal counsel, Latham & Watkins LLP, no later than the Closing Date in connection with its review, preparation and delivery of this Indenture and related documentation.

 

The Issuer shall indemnify each of the Trustee, any predecessor Trustee and the Agents (which, for purposes of this paragraph, include such Trustee’s and Agents’ affiliates, officers, directors, employees and agents) and in any other capacity the Trustee may serve hereunder for, and hold them harmless against, any and all loss, damage, claim, expense or liability including taxes (other than taxes based on the income of the Trustee) incurred by the Trustee or an Agent without gross negligence, willful misconduct or bad faith on its part, as determined by a court of competent jurisdiction in a final non-appealable decision in connection with acceptance of administration of this trust and performance of its duties under this Indenture, including the reasonable expenses and attorneys’ fees and expenses of defending itself against any claim of liability arising hereunder. The Trustee and the Agents shall notify the Issuer promptly of any claim asserted against the Trustee or such Agent for which it may seek indemnity. However, the failure by the Trustee or the Agent to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee or such Agent shall cooperate in the defense (and may employ its own counsel reasonably satisfactory to the Trustee) at the Issuer’s expense. The Trustee or such Agent may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made without its written consent, which consent shall not be unreasonably withheld.

 

To secure the Issuer’s payment obligations in this Section 7.6, the Trustee and the Agents shall have a senior Lien prior to the Notes against all money or property held or collected by the Trustee and the Agents, in its capacity as Trustee or Agent, except money or property held in trust to pay principal or premium, if any, Additional Amounts, if any, or interest on particular Notes.

 

The Issuer’s obligations under this Section 7.6 and any claim arising hereunder shall survive the termination of this Indenture, the resignation or removal of any Trustee or Agent, the discharge of the Issuer’s obligations pursuant to Article VIII and any rejection or termination under any Bankruptcy Law.

 

SECTION 7.7. Replacement of Trustee. The Trustee and any Agent may resign at any time upon 30 days’ prior written notice to the Issuer. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee or Agent by so notifying the Issuer and the Trustee or such Agent, as the case may be, in writing and may appoint a successor trustee or agent with the Issuer’s consent. A resignation or removal of the Trustee or any Agent and appointment of a successor Trustee or Agent, as the case may be, shall become effective only upon the successor Trustee’s or Agent’s acceptance of appointment, as the case may be, as provided in this section. The Issuer may remove the Trustee or an Agent if:

 

(1)            the Trustee or Agent, as the case may be, fails to comply with Section 7.9;

 

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

 

(3)            a receiver or other public officer takes charge of the Trustee or Agent, as the case may be, or its respective property; or

 

(4)            the Trustee or Agent, as the case may be, becomes incapable of acting with respect to its duties hereunder.

 

If the Trustee or an Agent resigns or is removed or if a vacancy exists in the office of Trustee or Agent for any reason, the Issuer shall notify each Holder of such event and shall promptly appoint a successor Trustee or Agent, as the case may be. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may, with the Issuer’s consent, appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.

 

A successor Trustee or Agent, as the case may be, shall deliver a written acceptance of its appointment to the retiring Trustee or Agent and to the Issuer. Immediately after that, the retiring Trustee or Agent, as the case may be, shall transfer, after payment of all sums then owing to the Trustee or Agent, as the case may be, pursuant to Section 7.6, all property held by it as Trustee or Agent to the successor Trustee or Agent, subject to the Lien provided in Section 7.6, the resignation or removal of the retiring Trustee or Agent, as the case may be, shall become effective, and the successor Trustee or Agent, as the case may be, shall have all the rights, powers and duties of the Trustee or Agent under this Indenture. A successor Trustee or Agent shall mail notice of its succession to each Holder.

 

If a successor Trustee or Agent does not take office within 60 days after the retiring Trustee or Agent resigns or is removed, (i) the retiring Trustee or Agent (as the case may be), the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee or Agent or (ii) the retiring Trustee may appoint a successor Trustee at any time prior to the date on which a successor Trustee takes office, provided that such appointment shall be reasonably satisfactory to the Issuer.

 

If the Trustee or Agent 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 or Agent, as the case may be, and the appointment of a successor thereto.

 

Notwithstanding replacement of the Trustee or Agent pursuant to this Section 7.7, the Issuer’s obligations under Section 7.6 shall continue for the benefit of the retiring Trustee or Agent, as the case may be, and the Issuer shall pay to any replaced or removed Trustee or Agent all amounts owed under Section 7.6 upon such replacement or removal.

 

SECTION 7.8. Successor Trustee by Merger, etc. If the Trustee or Agent consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall, if such resulting, surviving or transferee corporation is otherwise eligible hereunder, be the successor Trustee. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by consolidation, merger or conversion to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

 

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SECTION 7.9. Eligibility; Disqualification. This Indenture shall at all times have a Trustee that is an entity organized and doing business under the laws of the United States or any state thereof, or the United Kingdom, or a Member State of the European Union or a political subdivision thereof, that is authorized under examination by federal or state authorities or by the authorities of the United Kingdom or a Member State of the European Union or a political subdivision thereof. No obligor under the Notes or Person directly controlling, controlled by, or under common control with such obligor shall serve as Trustee.

 

SECTION 7.10. Disqualification; Conflicting Interests. Within 90 days after becoming aware that a material conflict of interest exists between the Trustee’s role as a trustee and any other capacity, the Trustee shall either (i) eliminate such conflict of interest or (ii) resign from office; provided, however, that this Indenture, the Notes and the Guarantees shall remain valid notwithstanding a material conflict of interest of the Trustee.

 

SECTION 7.11. [Intentionally omitted]

 

SECTION 7.12. Force Majeure. In no event shall the Trustee or Agent, in each of its capacities hereunder, be liable for any failure or delay in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo and government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services or the obligations contemplated by this Indenture.

 

SECTION 7.13. Consequential Loss. Notwithstanding anything to the contrary in this Indenture, in no event shall the Trustee or Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of such loss or damage and regardless of the form of action.

 

ARTICLE VIII

 

SATISFACTION AND DISCHARGE OF INDENTURE

 

SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, with respect to the Notes, elect to have either Section 8.2 or 8.3 be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.

 

SECTION 8.2. Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.2, the Issuer shall be deemed to have been discharged from its obligations with respect to the outstanding Notes and the Guarantors shall be deemed to have been discharged from their obligations with respect to the Guarantees, in each case on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged all the obligations relating to the outstanding Notes and the Notes shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.6, Section 8.8 and the other Sections of this Indenture referred to below in this Section 8.2, and to have satisfied all of their other obligations under such Notes, the Guarantees and this Indenture and cured all then existing Events of Default (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:

 

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(1)            the rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, interest and Additional Amounts, if any, on such Notes when such payments are due (including on a Redemption Date) from the trust created pursuant to this Indenture;

 

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

 

(3)            the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s and the Guarantors’ obligations in connection therewith set forth in Article VII hereof; and

 

(4)            this Article VIII and the obligations set forth in Section 8.6 hereof.

 

Subject to compliance with this Article VIII, the Issuer may exercise its option under Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 with respect to the Notes. If the Issuer exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.

 

SECTION 8.3. Covenant Defeasance. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.3, the Issuer and the Guarantors shall be released from any obligations under the covenants contained in Sections 4.5 (other than with respect to the Issuer), 4.8, 4.10, 4.17, 4.19 and 4.27 hereof with respect to the outstanding Notes 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 the purposes hereof, such Covenant Defeasance means that, (i) with respect to the outstanding Notes, the Issuer and the Guarantors 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 (ii) payment on the Notes may not be accelerated because of an Event of Default specified in clause (3) (insofar as it relates to Sections 4.5 (other than with respect to the Issuer), 4.8, 4.10, 4.17, 4.19, and 4.27 hereof) and (4).

 

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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 Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in euros in such amounts as will be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay the principal of, interest, premium and Additional Amounts, if any, on the outstanding Notes on the stated maturity or on the applicable redemption date, as the case may be, and the Issuer must specify whether the Notes are being defeased to maturity or to a particular redemption date;

 

(2)            in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee confirming that (A) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for United States federal income tax purposes as a result of such Legal Defeasance and will be subject to United States 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 Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for United States federal income tax purposes as a result of such Covenant Defeasance and will be subject to United States 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 or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);

 

(5)            the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and

 

(6)            the Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

SECTION 8.5. Satisfaction and Discharge of Indenture. This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder when:

 

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(1)            either (i) all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Issuer) have been delivered to the Trustee for cancellation; or (ii) all Notes that have not been delivered to the Trustee or the Registrar for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable at their stated maturity within one year, or if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee, and the Issuer has irrevocably deposited with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in euro in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee or the Registrar for cancellation for principal, premium and Additional Amounts, if any, and accrued interest to the date of maturity or redemption;

 

(2)            no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under any other Indebtedness in a principal amount in excess of €50.0 million;

 

(3)            the Issuer and each Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and

 

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

 

SECTION 8.6. Survival of Certain Obligations. Notwithstanding the satisfaction and discharge of this Indenture and of the Notes and the Guarantees referred to in Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Issuer, each Guarantor and the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 4.1, 4.2, 4.5 (only with respect to the Issuer), 4.6, 4.7, 4.9, 4.11, 4.20, 4.21, 4.22, Article VII, Article VIII and Section 11.11 shall survive until the Notes are no longer outstanding, and thereafter the obligations of the Issuer and the Trustee under Articles VII and VIII shall survive. Nothing contained in this Article VIII shall abrogate any of the obligations or duties of the Trustee under this Indenture.

 

SECTION 8.7. Acknowledgment of Discharge by Trustee. Subject to Section 8.10, after (i) the conditions of Section 8.4 or 8.5 have been satisfied, (ii) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer and (iii) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee upon written request shall acknowledge in writing the discharge of all of the Issuer’s obligations under this Indenture except for those surviving obligations specified in this Article VIII.

 

SECTION 8.8. Application of Trust Moneys. All cash in euros deposited with the Trustee pursuant to Section 8.4 or 8.5 in respect of Notes shall be held in trust and applied by it, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Notes of all sums due and to become due thereon for principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.

 

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The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash deposited pursuant to Section 8.4 or 8.5 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 outstanding Notes.

 

SECTION 8.9. Repayment to the Issuer; Unclaimed Money. The Trustee and any Paying Agent shall promptly pay or return to the Issuer upon Issuer Order any cash held by them at any time that are not required for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes for which cash has been deposited pursuant to Section 8.4 or 8.5.

 

Any money held by the Trustee in trust or any Paying Agent under this Article, for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on any Note and remaining unclaimed for two years after such principal, premium, if any, interest and Additional Amounts, if any, has become due and payable shall be paid to the Issuer upon Issuer Order or if then held by the Issuer shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer give notice to the Holders or, if and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will inform the Companies Announcement Office of Euronext Dublin or in the case of Definitive Notes, in addition to such publication, mail to Holders by first-class mail, postage prepaid, at their respective addresses as they appear on the registration books of the Registrar (and, if and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will inform the Companies Announcement Office of Euronext Dublin), 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, any unclaimed balance of such money then remaining will be repaid to the Issuer.

 

SECTION 8.10. Reinstatement. If the Trustee or any Paying Agent is unable to apply any cash in accordance with Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until such time as the Trustee or Paying Agent is permitted to apply all such cash in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however, that if the Issuer has made any payment of interest on, premium, if any, principal and Additional Amounts, if any, of any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

 

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ARTICLE IX

 

AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

SECTION 9.1. Without Consent of Holders of Notes. Notwithstanding Section 9.2 hereof, the Issuer, the Guarantors and the Trustee together may amend or supplement this Indenture, the Notes, the Guarantees or the Priority Agreement without the consent of any Holder of a Note:

 

(1)            to cure any ambiguity, defect, error or inconsistency;

 

(2)            to add or change any of the provisions of this Indenture or the Notes to such extent as shall be necessary to permit or facilitate the deposit of the Notes with, or on behalf of, a common safekeeper for Euroclear and Clearstream and the registration of such Notes in the name of such common safekeeper, and to otherwise allow the Notes to be held in a manner that will satisfy the Note format eligibility criteria for the Notes to be pledged as collateral in European central banking and monetary operations, or to provide for uncertificated Notes in addition to or in place of certificated Notes;

 

(3)            to provide for the assumption of the Issuer’s or a Guarantor’s obligations to Holders in the case of a merger or consolidation or sale of all or substantially all of the Issuer’s or such Guarantor’s assets, as applicable;

 

(4)            to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Indenture of any Holder;

 

(5)            to allow any Guarantor to execute a supplemental indenture and/or a Guarantee with respect to the Notes;

 

(6)            to evidence and provide the acceptance of the appointment of a successor Trustee under this Indenture;

 

(7)            to add additional parties to the Priority Agreement to the extent permitted hereunder and thereunder;

 

(8)            to conform the text of this Indenture, the Notes or the Guarantees to any provision of the “Description of Notes” in the Offering Memorandum to the extent such provision in the “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture, the Notes or the Guarantee;

 

(9)            to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture; or

 

(10)          to the extent necessary to provide for the granting of a Lien to secure the Notes and/or any Guarantee as contemplated under Section 4.10 hereof.

 

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Notwithstanding anything to the contrary in the paragraph above, in order to effect an amendment authorized by clause (5) above, it shall only be necessary for the supplemental indenture to be duly authorized and executed by the Issuer, such additional Guarantor and the Trustee. Any other amendments permitted by this Indenture need only be duly authorized and executed by Issuer and the Trustee.

 

Without the consent of the Holders of at least 80% in aggregate principal amount of the Notes then outstanding, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder) release any Guarantor from any of its obligations under its Guarantee or this Indenture, except in accordance with the terms of this Indenture.

 

Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture which adversely affects its own rights, duties or immunities hereunder or otherwise.

 

For so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice to the Companies Announcement Office of Euronext Dublin of any of the foregoing amendments, supplements and waivers and provide, if necessary, a supplement to the Offering Memorandum setting forth reasonable details in connection with any such amendments, supplements or waivers.

 

Notwithstanding anything to the contrary in this Section 9.1, in order to effect an amendment authorized by this Section 9.1 to add a Guarantor under this Indenture, it shall only be necessary for the supplemental indenture providing for the accession of such additional Guarantor to be duly authorized and executed by (i) the Issuer, (ii) such additional Guarantor and (iii) the Trustee.

 

SECTION 9.2. With Consent of Holders of Notes. The Issuer, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes, the Guarantees or the Priority Agreement with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), and, subject to Section 6.7, any existing Default, an Event of Default or its consequences or compliance with any provision of this Indenture, the Notes, the Guarantees or the Priority Agreement may be waived with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes). However, unless consented to by Holders of at least 90% of the aggregate principal amount of the then outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), without the consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder of the Notes):

 

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(1)            reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

 

(2)            reduce the principal of or change the fixed maturity of any Note;

 

(3)            reduce the rate of or change the time for payment of interest on any Note;

 

(4)            reduce the premium or amount payable upon the redemption of any Note or change the time at which any Note may be redeemed as described in Paragraphs 7 and 8 of the Notes;

 

(5)            waive a Default or Event of Default in the payment of principal of, or interest, premium or Additional Amounts, if any, on the Notes (except a rescission of acceleration of such Notes by the Holders of at least a majority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration);

 

(6)            make any Note payable in money other than that stated in the Notes;

 

(7)            make any change in the provisions of this Indenture relating to the rights of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes or any guarantee in respect thereof;

 

(8)            waive a redemption payment with respect to any Note (other than a payment required by Section 4.19 hereof);

 

(9)            make any change in the provisions of this Indenture described in Section 4.20 hereof that adversely affects the rights of any Holder of such Notes or amends the terms of such Notes in a way that would result in a loss of an exemption from any of the Taxes described thereunder or an exemption from any obligation to withhold or deduct Taxes so described thereunder unless the Payor agrees to pay Additional Amounts, if any, in respect thereof; or

 

(10)          make any change in the preceding amendment and waiver provisions.

 

Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture adversely affects the Trustee’s own rights, duties or immunities hereunder or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. It shall not be necessary for the consent of the Holders of Notes 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. After an amendment, supplement or waiver under this Section becomes effective, the Issuer shall mail to the Holders of Notes a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.

 

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After an amendment, supplement or waiver under the foregoing paragraph becomes effective, the Issuer shall, in the case of Definitive Notes, mail to the Holders of the Notes a notice briefly describing the amendment, supplement or waiver. However, the failure to give such notice to all Holders of the Notes, or any defect therein, will not in any way impair or affect the validity of such amended or supplemented indenture or waiver. In addition, for so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice of any amendment, supplement and waiver to the Companies Announcement Office of Euronext Dublin.

 

SECTION 9.3. Revocation and Effect of Consents. (a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder of a Note.

 

(b)            The Issuer may, but shall not be obligated to, fix a record date for determining which Holders of the Notes must consent to such amendment, supplement or waiver. If the Issuer fixes a record date, the record date shall be fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of Notes furnished to the Trustee prior to such solicitation pursuant to Section 2.5 or (ii) such other date as the Issuer shall designate.

 

SECTION 9.4. Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall 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 shall, at the cost and expense of the Issuer, execute any amendment, supplement or waiver authorized pursuant to this Article IX; provided, however, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which adversely affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive indemnity reasonably satisfactory to it, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that (i) the execution of any amendment, supplement or waiver authorized pursuant to this Article IX is authorized or permitted by this Indenture and (ii) constitutes the legal, valid and binding obligations of the Issuer enforceable in accordance with its terms; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

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ARTICLE X

 

GUARANTEES

 

SECTION 10.1. Guarantee. (a) Subject to the provisions of Section 10.2 hereof and any other limitations under applicable law, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guarantee Obligations”). Each Guarantor further agrees (to the extent permitted by and subject to requirements under applicable law) that the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X (to the extent permitted by applicable and subject to requirements under applicable law) notwithstanding any extension or renewal of any Guarantee Obligation.

 

(b)            To the extent permitted by law, each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Guarantee Obligations and also waives notice of protest for nonpayment, including, for the avoidance of doubt, any right of subrogation in relation to the Holders in respect of any such Guarantee Obligations. Each Guarantor waives notice of any default under the Notes or the Guarantee Obligations. The obligations of each Guarantor hereunder shall not (to the extent permitted by and subject to requirements under applicable law) be affected by: (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer, any other Guarantor or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes, the Priority Agreement or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guarantee Obligations or any of them; or (e) any change in the ownership of the Issuer.

 

(c)            Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantee Obligations.

 

(d)            Subject to the provisions of Section 10.2 hereof, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantee Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent permitted by law) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantee Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent permitted by law) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Note, the Priority Agreement or any other agreement, (ii) any waiver or modification of any thereof, (iii) any default, failure or delay, willful or otherwise, in the performance of the Guarantee Obligations, or (iv) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.

 

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(e)            Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest or Additional Amounts, if any, on any of the Guarantee Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization (including examinership) of the Issuer or otherwise.

 

(f)             Subject to the provisions of Section 10.2 hereof, in furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantee Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee for and on behalf of itself and the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantee Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantee Obligations then due and owing (but only to the extent not prohibited by law). Payments made under this guarantee shall be made to the Trustee on behalf of the Holders.

 

(g)            Each Guarantor further agrees that, as between it, on the one hand, and the Holders, on the other hand, but subject always to Section 10.2 hereof, (x) the maturity of the Guarantee Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantee Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantee Obligations, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purposes of its Guarantee.

 

(h)            Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.

 

(i)             Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof.

 

SECTION 10.2. Limitation on Liability. (a) Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guarantee Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally or other considerations under applicable law.

 

(b)            The liability of each Parent Guarantor and Subsidiary Guarantor under this Article X shall be limited to the extent of the limitations (if any) set out in any supplemental indenture executed by a Subsidiary providing for a Guarantee.

 

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SECTION 10.3. Successors and Assigns. This Article X shall be binding upon each Guarantor and its successors and assigns and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.

 

SECTION 10.4. No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article X shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article X at law, in equity, by statute or otherwise.

 

SECTION 10.5. Modification. No modification, amendment or waiver of any provision of this Article X, nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand in the same, similar or other circumstances.

 

SECTION 10.6. Release of Guarantor. The Guarantee of a Guarantor will be released:

 

(1)            with respect to a Subsidiary Guarantor, in connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) SKA or a Subsidiary of SKA;

 

(2)            with respect to a Subsidiary Guarantor, in connection with any sale or other disposition of Capital Stock of that Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) SKA or a Subsidiary of SKA, if such Subsidiary Guarantor ceases to be a Subsidiary as a result of such sale or other disposition;

 

(3)            with respect to a Guarantor (other than SKG or SKA), upon the release or discharge of the guarantee or other obligation of such Guarantor under the Senior Facility Agreement or such other guarantee or other obligation that resulted in the creation of such Guarantee, except a release or discharge by or as a result of payment under such guarantee; provided that the guarantee of such Guarantor under the Existing Senior Notes has been released or is concurrently released;

 

(4)            with respect to a Guarantor (other than SKA), by written notice from SKA to the Trustee if such Guarantor does not then guarantee SKA’s obligations under any of the Existing Senior Notes (after giving effect to Indebtedness and guarantees concurrently being released or repaid);

 

(5)            in accordance with Article IX;

 

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(6)            upon the full and final payment and performance of all obligations of the Issuer and the Guarantors under this Indenture and the Notes;

 

(7)            upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge of this Indenture as provided for in Article VIII; or

 

(8)            with respect to a Subsidiary Guarantor, by written notice from the Issuer to the Trustee upon the Notes receiving an Investment Grade Rating from the Rating Agencies; provided that none of the Existing Senior Notes are guaranteed by any of the Subsidiary Guarantors (after giving effect to guarantees concurrently being released) and no Default or Event of Default shall have occurred and be continuing at the time of such written notice,

 

provided, however, that in the case of clauses (1) and (2) above, the Issuer provides an Officers’ Certificate to the Trustee to the effect that the Issuer will comply with its obligations under Section 4.6.

 

At the request of the Issuer, the Trustee shall execute and deliver an appropriate instrument evidencing such release.

 

SECTION 10.7. Execution of Supplemental Indenture for Future Guarantors. Each Subsidiary and other Person which is required to become a Guarantor pursuant to Section 4.8 shall promptly execute and deliver to the Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to which such Subsidiary or other Person shall become a Guarantor under this Article X and shall guarantee the Guarantee Obligations. Concurrently with the execution and delivery of such supplemental indenture, the Issuer shall deliver to the Trustee an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee and an Officers’ Certificate to the effect (i) that such supplemental indenture has been duly authorized, executed and delivered by such Subsidiary or other Person and (ii) that, subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws affecting the rights of creditors generally and to the principles of equity, whether considered in a proceeding at law or in equity, the Guarantee of such Guarantor is a valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms and to such other matters as the Trustee may reasonably request; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

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ARTICLE XI

 

MISCELLANEOUS

 

SECTION 11.1. Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telecopier or first-class mail, postage prepaid, addressed as follows:

 

if to the Issuer or any Guarantor:

 

Attention: Secretary

Smurfit Kappa Treasury Unlimited Company

Beech Hill

Clonskeagh

Dublin 4

Ireland

Facsimile: +353-1-283-7113

 

with a copy to:

 

Attention: Mr. Dennis M. Myers, P.C.

Kirkland & Ellis LLP

300 N. LaSalle

Chicago, Illinois 60654

United States

Facsimile: +1-312-862-2200

 

if to the Trustee:

 

Attention: Trust & Securities Services, Global Debt Services

Deutsche Trustee Company Limited

Winchester House

1 Great Winchester Street

London EC2N 2DB

United Kingdom

Telecopier: +44-207-547-6149

 

if to the Principal Paying Agent:

 

Attention: Trust & Securities Services

Deutsche Bank AG, London Branch, as Principal Paying Agent

Winchester House

1 Great Winchester Street

London EC2N 2DB

United Kingdom

Telecopier: +44-207-547-6149

 

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if to the Transfer Agent or Registrar:

 

Deutsche Bank Luxembourg S.A.
2, boulevard Konrad Adenauer
L-1115 Luxembourg

Telecopier: +352-473-136

 

Each of the Issuer and the Trustee by written notice to each other such Person may designate additional or different addresses for notices to such Person. Any notice or communication to the Issuer and the Trustee shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if telecopied; and five calendar days after mailing if sent by first class mail, postage prepaid (except that a notice of change of address and a notice to the Trustee shall not be deemed to have been given until actually received by the addressee).

 

In the case of Definitive Notes, all notices to Holders of the Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. And, so long as any of the Notes are listed on Euronext Dublin, and the rules of Euronext Dublin so require, notices will be given to the Companies Announcement Office of Euronext Dublin. Each such notice shall be deemed to have been given on the date of such publication, or, if published more than once on different dates, on the first date on which publication is made, provided that, if notices are mailed, such notice shall be deemed to have been given on the later of such publication and the seventh day after being so mailed. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of beneficial interests in the Notes and all notices that are required to be delivered to Holders will be deemed delivered for purposes of this Indenture if delivered to such Clearing Agencies for communication to holders of book-entry interests. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to such Person if so mailed within the time prescribed. 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. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

 

SECTION 11.2. Communications by Holders with Other Holders. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and any other person shall have the protection of Section 312(c) of the TIA.

 

SECTION 11.3. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee or an Agent to take any action under this Indenture, the Issuer shall furnish to the Trustee at the request of the Trustee:

 

(1)            an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.4) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied or complied with; and

 

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(2)            an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.4) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied or complied with.

 

In any case where several matters are required to be certified by, or covered by an Opinion of Counsel of, any specified Person, it is not necessary that all such matters be certified by, or covered by the Opinion of Counsel of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an Opinion of Counsel with respect to some matters and one or more such Persons as to other matters, and any such Person may certify or give an Opinion of Counsel as to such matters in one or several documents.

 

Any certificate of an Officer of the Issuer may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such Officer knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the matters upon which his certificate is based are erroneous. Any Opinion of Counsel may be based, and may state that it is so based, insofar as it relates to factual matters, upon a certificate of, or representations by, an officer or officers of the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate 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 11.4. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

(1)            a statement that the Person making such certificate or opinion has read such covenant or condition;

 

(2)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)            a statement that, in the opinion of such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(4)            a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with, provided, however, that an issuer of an Opinion of Counsel may reasonably rely as to any matter of fact on an Officers’ Certificate or a certificate of a public official.

 

SECTION 11.5. Rules by Trustee, Paying Agent, Registrar. The Trustee, the Paying Agent, the Principal Paying Agent or the Registrar may make reasonable rules for its functions.

 

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SECTION 11.6. Legal Holidays. If a payment date is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.

 

SECTION 11.7. Governing Law. Each of this Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

SECTION 11.8. Submission to Jurisdiction; Appointment of Agent for Service. To the fullest extent permitted by applicable law, the Issuer and each Guarantor irrevocably submits to the non-exclusive jurisdiction of and venue in any federal or state court in the Borough of Manhattan in the City of New York, County and State of New York, United States of America, in any suit or proceeding based on or arising out of or under or in connection with this Indenture or any of the transactions contemplated hereby, and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Issuer and each Guarantor, to the fullest extent permitted by applicable law, irrevocably and fully waive the defense of an inconvenient forum to the maintenance of such suit or proceeding and hereby irrevocably designate and appoint Smurfit Kappa Packaging LLC (the “Authorized Agent”) as its authorized agent upon whom process may be served in any such suit or proceeding. The Issuer and each Guarantor represent and warrant that the Authorized Agent has accepted such appointment and irrevocably agreed to act as said agent for service of process. The Issuer and each Guarantor agree that service of process upon its Authorized Agent and written notice of said service to the Issuer or a Guarantor, mailed by first class mail or delivered to its Authorized Agent shall be deemed in every respect effective service of process upon the Issuer or such Guarantor, respectively, in any such suit or proceeding. Nothing herein shall affect the right of any person to serve process in any other manner permitted by law. The Issuer agrees that a final action in any such suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other lawful manner. Notwithstanding the foregoing, any action against the Issuer arising out of or based on this Indenture or the transactions contemplated hereby may also be instituted in any competent court in Ireland and the Issuer expressly accepts the jurisdiction of any such court in any such action. The Issuer hereby irrevocably waives, to the extent permitted by law, any immunity to jurisdiction to which it may otherwise be entitled (including immunity to pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Indenture, the Notes or the transactions contemplated hereby. The provisions of this Section 11.8 are intended to be effective upon the execution of this Indenture and the Notes without any further action by the Issuer, any Guarantor or the Trustee and the introduction of a true copy of this Indenture into evidence shall be conclusive and final evidence as to such matters.

 

SECTION 11.9. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of any of the Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

SECTION 11.10. No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders. No director, officer, employee, incorporator or shareholder of the Parent Guarantors, the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Parent Guarantors, the Issuer or any Subsidiary Guarantor under the Notes, this Indenture or the Priority Agreement or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

67

 

 

SECTION 11.11. Currency Indemnity. The euro is the sole currency of account and payment for all sums payable by the Issuer and the Guarantors under or in connection with the Notes and the Guarantees, including damages. Any amount received or recovered in a currency other than euro whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, any Guarantor or otherwise by any Holder or by the Trustee, as the case may be, in respect of any sum expressed to be due to it from the Issuer or a Guarantor will only constitute a discharge to the Issuer or the Guarantor, as applicable, to the extent of the euro amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that euro amount is less than the euro amount expressed to be due to the recipient under any Note, any Guarantee or to the Trustee, the Issuer and the Guarantors will indemnify them on a joint and several basis against any loss sustained by such recipient as a result. In any event, the Issuer and the Guarantors will indemnify the recipient on a joint and several basis against the cost of making any such purchase. For the purposes of this Section 11.11, it will be sufficient for the Holder of a Note or the Trustee to certify in a satisfactory manner (indicating the sources of information used) that it would have suffered a loss had an actual purchase of euro been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of euro on such date had not been practicable, on the first date on which it would have been practicable, it being required that the need for a change of date be certified in the manner mentioned above). These indemnities constitute a separate and independent obligation from the Issuer’s and the Guarantors’ other obligations, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by any Holder of a Note or the Trustee and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note, any Guarantee or to the Trustee.

 

SECTION 11.12. Currency Calculation. Except as otherwise expressly set forth herein, for purposes of determining compliance with any euro-denominated restriction herein, the euro-equivalent amount for purposes hereof that is denominated in a non-euro currency shall be calculated based on the relevant currency exchange rate in effect on the date such non-euro amount is incurred or made, as the case may be.

 

SECTION 11.13. Information. For so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, copies of this Indenture will be made available through the offices of the Irish listing agent.

 

SECTION 11.14. Successors. All agreements of the Issuer in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.

 

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SECTION 11.15. Counterpart Originals. All parties hereto may sign any number of copies of this Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent one and the same agreement.

 

SECTION 11.16. Severability. In case any one or more of the provisions in this Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

SECTION 11.17. Table of Contents, Headings, etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

SECTION 11.18. Termination of Priority Agreement. On or following the Issue Date, the Trustee, on behalf of itself and the Holders of the Notes and at the request and expense of the Issuer, will accede to the Priority Agreement. Each Holder, by accepting a Note, consents and agrees to the terms and conditions of the Priority Agreement. SKF shall be entitled, upon written notice by SKF to the Trustee, to terminate the Priority Agreement as to itself, the Issuer and all of the Guarantors, in its sole discretion and without any action on the part of the Trustee or any of the Holders of the Notes at any time after which the holders of any of the Existing Senior Notes are no longer entitled to the benefits of, or otherwise subject to the terms or conditions of, the Priority Agreement.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of the date first written above.

 

  Very truly yours,
     
  ISSUER:
     
  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
     
  By: /s/ Ken Bowles
    Name: Ken Bowles
    Title: Director

 

[Signature Page to the Indenture]

 

 

 

 

  IRISH GUARANTORS:
   
  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY
  SMURFIT KAPPA FUNDING DESIGNATED ACTIVITY COMPANY
  SMURFIT KAPPA CORPORATION DESIGNATED ACTIVITY COMPANY
  SMURFIT KAPPA GROUP PLC
  SMURFIT KAPPA INVESTMENTS LIMITED
  SMURFIT KAPPA HOLDINGS LIMITED
  SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY
     
  By: /s/ Michael O’Riordan
    Name: Michael O’Riordan
    Title: Authorized Signatory

 

[Signature Page to the Indenture]

 

 

 

 

  DUTCH GUARANTOR:
   
  SMURFIT INTERNATIONAL B.V.
     
  By: /s/ Michael O’Riordan
    Name: Michael O’Riordan
    Title: Authorized Signatory

 

[Signature Page to the Indenture]

 

 

 

 

  DEUTSCHE BANK AG, London Branch, as Principal Paying Agent
   
     
  By: /s/ Paul Yetton
    Name: Paul Yetton
    Title: Vice President
     
     
  By: /s/ Shireen Mahmoud
    Name: Shireen Mahmoud
    Title: Vice President

 

[Signature Page to the Indenture]

 

 

 

 

  DEUTSCHE BANK LUXEMBOURG S.A., as Transfer Agent and Registrar
   
     
  By: /s/ Paul Yetton
    Name: Paul Yetton
    Title: Attorney
     
     
  By: /s/ Shireen Mahmoud
    Name: Shireen Mahmoud
    Title: Attorney

 

[Signature Page to the Indenture]

 

 

 

 

 

SCHEDULE A

SUBSIDIARY GUARANTORS

 

Name Jurisdiction Registration Number  
(or equivalent, if any)  
     
   
Smurfit Kappa Treasury Funding Designated Activity Company (previously Smurfit Kappa Treasury Funding Limited, Smurfit Capital Funding Limited and Smurfit Capital Funding Public Limited Company) Ireland 239631  
Smurfit International B.V. Netherlands 33149443  

 

A-1

 

 

EXHIBIT A

TO THE INDENTURE

 

[FORM OF FACE OF GLOBAL NOTE]

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Global Securities Legend]

 

UNLESS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V. (“EUROCLEAR”) OR CLEARSTREAM BANKING S.A. (“CLEARSTREAM”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF EUROCLEAR OR CLEARSTREAM OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

A-2

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

A-3

 

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

A-4

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

1.50% SENIOR NOTE DUE 2027

 

Common Code:

 

ISIN:

 

No. ___

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay € ___________ to__________  or registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on September 15, 2027.

 

Interest Payment Dates: March 15 and September 15 of each year, commencing March 15, 2020.

 

Record Dates: March 1 and September 1.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

A-5

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
     
  By:  
  Name:
  Title:  
                
     
  By:  
  Name:  
  Title:  

 

(Signature page to the Regulation S Global Note)

 

 

 

 

This is one of the Notes referred to
in the within-mentioned Indenture:

 

Deutsche Bank Luxembourg S.A.,

as Authenticating Agent for

DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee

 

By:    
Name:    
Title:    
     
Dated:    

 

(Signature page to the Regulation S Global Note)

 

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

1.50% SENIOR NOTE DUE 2027

 

1.         Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the Notes will be payable semi-annually in arrears on March 15 and September 15 of each year, commencing March 15, 2020. The Issuer will make each interest payment to the Holders of record on the immediately preceding March 1 and September 1. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the Notes will accrue at the rate of 1.50% per annum on the aggregate nominal amount of the Notes outstanding. Interest on the Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

The Issuer shall pay interest on overdue principal and on overdue installments of interest (without regard to any applicable grace periods) and on any Additional Amounts from time to time on demand at the rate borne by the Notes plus 1.0% per annum to the extent lawful. Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.         Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

A-8

 

 

(1)       withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or beneficial owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or beneficial owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

(2)       any Taxes that would not have been imposed if the Holder or beneficial owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or beneficial owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)       except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)       any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)       any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)       any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

(7)       a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

A-9

 

 

(8)       any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(9)       any combination of clauses (1) through (8) above.

 

Such Additional Amounts will also not be payable where, had the beneficial owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (9) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.        Method of Payment. The Issuer shall pay interest (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. Immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.        Paying Agent and Registrar. Initially, Deutsche Bank AG, London Branch, will act as Principal Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or transfer agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.        Indenture. The Issuer issued the Notes under an Indenture, dated as of September 16, 2019 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 1.50% Senior Notes due 2027 (the “Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

6.        Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

A-10

 

 

 

7.        Optional Redemption. Except as set forth below or under Paragraph 8 and 10, none of the Notes will be redeemable at the Issuer’s option prior to June 15, 2027.

 

At any time prior to June 15, 2027, the Issuer may redeem the Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such Note on June 15, 2027, plus (ii) all required interest payments due on such Note through June 15, 2027 (excluding accrued but unpaid interest to the date of redemption) computed using a discount rate equal to the Bund Rate as of such date of redemption plus 50 basis points calculated by the Issuer, plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

On or after June 15, 2027, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

If and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the Notes that will remain outstanding following such redemption.

 

8.        Special Tax Redemption. The Issuer may, at its option, redeem the Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the Notes would be, required to pay Additional Amounts, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such Notes were then due. Prior to the publication or mailing of any notice of redemption of Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the Notes.

 

A-11

 

 

 

9.        Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.        Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any Affiliate or third party making a Change of Control Offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such Affiliate or third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the date of redemption.

 

A-12

 

 

11.      [Intentionally omitted]

 

12.     Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture, the Priority Agreement and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.      Acceptance of Terms and Conditions. The Indenture provides that each Holder, by accepting a Note, consents and agrees to the terms and conditions of the Priority Agreement and acknowledges that, upon written notice by the Parent to the Trustee, the Parent is permitted to terminate the Priority Agreement as to itself, the Issuer and all of the Guarantors in its sole discretion and without any action on the part of the Trustee or the Holders, at any time after which the holders of any of the Existing Senior Notes are no longer entitled to the benefits of, or otherwise subject to the terms or conditions of, the Priority Agreement.

 

14.      [Intentionally omitted]

 

15.      Denominations; Form;   Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar and the Paying Agent and transfer agents may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

16.      Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

17.      Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

18.      Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

19.      Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding.

 

A-13

 

 

20.      Restrictive Covenants. The Indenture imposes certain covenants that, among other things, limit the ability of SKA and its Subsidiaries to incur additional Indebtedness secured by a Lien, limit the ability of SKA’s Subsidiaries to guarantee the Existing Senior Notes or any other Public Indebtedness without guaranteeing the Notes and limit the ability of the Issuer or SKA to enter into and consummate certain mergers and consolidations or sales of all or substantially all of its assets. The limitations are subject to a number of important qualifications and exceptions. SKA must annually report to the Trustee on compliance with such limitations.

 

21.      Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.      Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

23.      Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.      No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer, as such, shall have any liability for any obligations of the Issuer under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

25.      Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.      Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.      ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

A-14

 

 

28.       Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

A-15

 

 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL AMOUNT

 

The initial principal amount at maturity of this Note shall be €      . The following decreases/increases in the principal amount at maturity of this Note have been made:

 

            Total Principal    
            Amount at   Notation
    Decrease in   Increase in   Maturity   Made by
Date of   Principal   Principal   Following such   or on
Decrease/   Amount at   Amount at   Decrease/   Behalf of
Increase   Maturity   Maturity   Increase   Trustee
                 
                 
                 

 

A-16

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ~

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date:

 

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

 

A-17

 

 

 

EXHIBIT B

TO THE INDENTURE

 

[FORM OF FACE OF DEFINITIVE NOTE]

 

THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

[Rule 144A Securities Legend]

 

B-1

 

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-2

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

[Definitive Securities Legend]

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER SHALL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

B-3

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY


 

1.50% SENIOR NOTE DUE 2027

 

  Common Code:  

 

  ISIN:  

 

  €  

 

No.    

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay € ___________  to _________  or registered assigns upon surrender hereof the principal sum of ___________  Euros (€________ ), on September 15, 2027.

 

Interest Payment Dates: March 15 and September 15 of each year, commencing March 15, 2020.

 

Record Dates: March 1 and September 1.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

B-4

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
     
  By:               
  Name:  
  Title:  
   
     
  By:  
  Name:  
  Title:  
     

 

This is one of the Notes referred to in the within-mentioned Indenture:  
     
Deutsche Bank Luxembourg S.A.,  
as Authenticating Agent for  
DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee  
     
     
By:                       
Name:    
Title:  
   
Dated:    

 

B-5

 

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

1.50% SENIOR NOTE DUE 2027

 

1.         Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the Notes will be payable semi-annually in arrears on March 15 and September 15 of each year, commencing March 15, 2020. The Issuer will make each interest payment to the Holders of record on the immediately preceding March 1 and September 1. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the Notes will accrue at the rate of 1.50% per annum on the aggregate nominal amount of the Notes outstanding. Interest accruing on all Notes then outstanding will be payable in cash. Interest on the Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

The Issuer shall pay interest on overdue principal and on overdue installments of interest (without regard to any applicable grace periods) and on any Additional Amounts from time to time on demand at the rate borne by the Notes plus 1.0% per annum to the extent lawful. Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.        Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on -account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

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(1)       withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or beneficial owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or beneficial owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

(2)       any Taxes that would not have been imposed if the Holder or beneficial owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or beneficial owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)       except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)       any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)       any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)       any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

(7)       a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

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(8)       any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(9)       any combination of clauses (1) through (8) above.

 

Such Additional Amounts will also not be payable where, had the beneficial owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (9) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.         Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are the registered Holders at the close of business on the Record Date immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. With respect to payments in euros, if (i) a Holder has given wire transfer instructions to the Issuer and the Paying Agent in writing, (ii) the Paying Agent has received such written wire transfer instruction at least 15 days prior to the date of the relevant payment and (iii) for so long as the Notes are listed on Euronext Dublin, such holder has also provided such notice to the Paying Agent, then the Issuer will pay all interest, premium and Additional Amounts, if any, on that Holder’s Notes in accordance with those instructions by wire transfer of same day funds to the Paying Agent who in turn will wire such funds to the Holder hereof or to such other Person as the Holder hereof may in writing to the Paying Agent direct. In all other cases, the Issuer may elect to make payments of interest, premium and Additional Amounts, if any, on a Holder’s Notes by check mailed to the Holders at their addresses set forth in the register of Holders. Payments on Notes will be made through the office or agency of the Paying Agent and Registrar for the Notes unless the Issuer elects to make interest payments by check as previously described. If payments are made through the Paying Agent, immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.         Paying Agent and Registrar. Initially, Deutsche Bank AG, London Branch, will act as Principal Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or transfer agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.         Indenture. The Issuer issued the Notes under an Indenture, dated as of September 16, 2019 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 1.50% Senior Notes due 2027 (the “Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

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6.         Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.         Optional Redemption. Except as set forth below or under Paragraph 8 and 10, none of the Notes will be redeemable at the Issuer’s option prior to June 15, 2027.

 

At any time prior to June 15, 2027, the Issuer may redeem the Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such Note on June 15, 2027, plus (ii) all required interest payments due on such Note through June 15, 2027 (excluding accrued but unpaid interest to the date of redemption) computed using a discount rate equal to the Bund Rate as of such date of redemption plus 50 basis points calculated by the Issuer, plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

On or after June 15, 2027, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

 

If and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the Notes that will remain outstanding following such redemption.

 

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8.        Special Tax Redemption. The Issuer may, at its option, redeem the Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise, (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the Notes would be, required to pay Additional Amounts, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such Notes were then due. Prior to the publication or mailing of any notice of redemption of Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the Notes.

 

9.        Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.       Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest, and Additional Amounts, if any, on the relevant interest payment date). Holders of Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

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If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the date of redemption.

 

11.      [Intentionally omitted]

 

12.      Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture, the Priority Agreement and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.       Acceptance of Terms and Conditions. The Indenture provides that each Holder, by accepting a Note, consents and agrees to the terms and conditions of the Priority Agreement and acknowledges that, upon written notice by the Parent to the Trustee, the Parent is permitted to terminate the Priority Agreement as to itself, the Issuer and all of the Guarantors in its sole discretion and without any action on the part of the Trustee or the Holders, at any time after which the holders of any of the Existing Senior Notes are no longer entitled to the benefits of, or otherwise subject to the terms or conditions of, the Priority Agreement.

 

14.      [Intentionally omitted]

 

15.      Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar and the Paying Agent and transfer agents may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

16.      Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

17.      Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

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18.       Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

19.       Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding.

 

20.       Restrictive Covenants. The Indenture imposes certain covenants that, among other things, limit the ability of SKA and its Subsidiaries to incur additional Indebtedness secured by a Lien, limit the ability of SKA’s Subsidiaries to guarantee the Existing Senior Notes or any other Public Indebtedness without guaranteeing the Notes and limit the ability of the Issuer or SKA to enter into and consummate certain mergers and consolidations or sales of all or substantially all of its assets. The limitations are subject to a number of important qualifications and exceptions. The SKA must annually report to the Trustee on compliance with such limitations.

 

21.      Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.      Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

23.      Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.      No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer, as such, shall have any liability for any obligations of the Issuer under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

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25.      Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.      Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.      ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.      Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

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ASSIGNMENT FORM

 

To assign this Note fill in the form below:

 

I or we assign and transfer this Note to

 

(Print or type assignee’s name, address and zip code)

 

(Insert assignee’s social security or tax I.D. No.)

 

and irrevocably appoint                             agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

Date:______________   Your Signature:

 

Sign exactly as your name appears on the other side of this Note.

 

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OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ~

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date:

 

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

 

B-15

 

 

EXHIBIT C

TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(TRANSFERS PURSUANT TO SECTION 2.7(B) OF THE INDENTURE)

 

Smurfit Kappa Treasury Unlimited Company 

c/o Deutsche Trustee Company Limited, as Trustee 

Winchester House 

1 Great Winchester Street 

London EC2N 2DB 

United Kingdom 

Attention: Trust & Security Services

 

Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar 

2, boulevard Konrad Adenauer 

L-1115 Luxembourg

 

RE:         1.50% Senior Notes due 2027 (the “Notes”) of Smurfit Kappa Treasury Unlimited Company (the “Issuer”)

 

Reference is hereby made to the Indenture, dated as of September 16, 2019 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.

 

This letter relates to €________________   (being any integral multiple of €1,000 in excess of  €100,000) principal amount of Notes which are evidenced by Rule 144A Global Notes (ISIN  _______________ ; Common Code ____________________  ) and held by you on behalf of the Common Depositary who in turn is holding an interest therein on behalf of the undersigned (the “Transferor”). The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the Rule 144A Global Note be transferred or exchanged for an interest in the Regulation S Global Note (ISIN XS2050968333; Common Code 205096833) in the form of an equal aggregate principal amount of Notes. If this is a partial transfer, a minimum amount of €100,000 and any integral multiple of €1,000 in excess thereof of the Rule 144A Global Note will remain outstanding.

 

In connection with such request and in respect of such Notes, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S under the Securities Act, and accordingly the Transferor further certifies that:

 

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(A)          (1) the offer of the Notes was not made to a person in the United States;

 

(2) either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on our behalf knows that the transaction was prearranged with a buyer in the United States,

 

(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;

 

(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

(5) if the transfer is made prior to the expiration of 40 days after the later of the Issue Date and the last date on which the Issuer or any of its affiliates was the owner of such Notes (and the Guarantees) (or any predecessor thereto), the transfer was not made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser of the Notes).

 

OR

 

(B)      such transfer is being made in accordance with Rule 144 under the Securities Act.

 

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This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer and the Initial Purchasers.

 

Dated:  
   
  [Name of Transferor]
   
  By:             
  Name:
  Title:
  Telephone No.:

 

Please print name and address (including zip code number)  
   

 

C-3

 

 

EXHIBIT D

TO THE INDENTURE

 

FORM OF SUPPLEMENTAL INDENTURE

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of [date], among (i) [subsidiary guarantor] (the “New Guarantor”), a [type of company] organized under the laws of [jurisdiction of organization] with its registered office at [registered office] and a Subsidiary, (ii) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (iii) Deutsche Trustee Company Limited, as Trustee, (iv) Deutsche Bank AG, London Branch, as Principal Paying Agent and (v) Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar.

 

WITNESSETH:

 

WHEREAS the Issuer has heretofore executed an Indenture dated as of September 16, 2019 (the “Indenture”), providing for the issuance of the Notes by the Issuer;

 

WHEREAS Section 4.8 of the Indenture provides that under certain circumstances the Issuer is required to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture providing for a Guarantee of payment of the Notes by the New Guarantor on the terms and conditions set forth herein; and WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.            Agreement to Guarantee. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.            Agreement to be Bound. The New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

3.            Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

D-1

 

 

4.            Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.            Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

7.             Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.            Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

D-2

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

  [NEW GUARANTOR]
                       
  By  
  Name:  
  Title:  

 

 

SIGNED and DELIVERED as a deed 

for and on behalf of 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY 

by its duly authorised attorney

 

[                     ]

in the presence of [               ]

 Signature
   

   
   

Print Address

  
   
   

 

D-3

 

 

  DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee
   
     
  By:  
  Name:
  Title:
                  
     
  By:  
  Name:
  Title:
     

 

D-4

  

 

 

Exhibit 4.10

 

Execution Version

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY,
as Issuer

 

SMURFIT KAPPA GROUP PLC,
SMURFIT KAPPA INVESTMENTS LIMITED,
SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY,
each as a Parent Guarantor

 

SMURFIT INTERNATIONAL B.V.,
SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY,
each as a Subsidiary Guarantor

 

and

 

DEUTSCHE TRUSTEE COMPANY LIMITED,
as Trustee

 

______________________________________

 

FIRST SUPPLEMENTAL INDENTURE

 

Dated as of October 5, 2023

 

to

 

INDENTURE

 

Dated as of September 16, 2019

 

______________________________________

 

1.500% Senior Notes due 2027

 

 

 

 

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of October 5, 2023, among (i) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as issuer (the “Issuer”), (ii) Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as parent guarantor (“SKG”), (iii) Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as parent guarantor (“SKI”), (iv) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as parent guarantor (“SKA”, and together with SKG and SKI, the “Parent Guarantors”), (v) Smurfit International B.V., a private limited company incorporated under the laws of Netherlands and having its registered office at Warandelaan 2, 4904 PC Oosterhout, the Netherlands as subsidiary guarantor (“SIB”), (vi) Smurfit Kappa Treasury Funding Designated Activity Company, a designated activity company limited by shares incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as subsidiary guarantor (“SKD”, and together with SIB, the “Subsidiary Guarantors”, and together with the Parent Guarantors, the “Guarantors”) and (vii) Deutsche Trustee Company Limited, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS, among others, the Issuer, the Trustee and the Guarantors have executed and delivered an indenture dated as of September 16, 2019 (the “Base Indenture”, as amended and supplemented by this Supplemental Indenture, and as the same may be further amended, supplemented or modified from time to time, the “Indenture”), providing for the issuance by the Issuer of €750,000,000 aggregate principal amount of its 1.500% Senior Notes due 2027 (the “Notes”);

 

WHEREAS, the parties hereto have agreed to make certain modifications to the Base Indenture with respect to the Notes subject to the terms and conditions set forth herein;

 

WHEREAS, Section 9.2 (With Consent of Holders of Notes) of the Base Indenture provides that the Issuer, the Guarantors and the Trustee may, with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes, amend the Indenture subject to certain limitations set forth in the Indenture;

 

WHEREAS, the Issuer solicited consents from Holders of the Notes pursuant to the consent solicitation statement dated September 27, 2023 (the “Consent Solicitation Statement”) to certain proposed amendments to the Base Indenture as contained herein upon the terms and subject to the conditions set forth therein, which consents were received on October 5, 2023;

 

WHEREAS, the Issuer has requested that the Trustee execute and deliver this Supplemental Indenture and for this purpose has delivered to the Trustee (i) evidence that the Required Consents (as defined in the Consent Solicitation Statement) with respect to the Notes to effect the amendments contained herein have been duly and validly received by the Issuer and (ii) the Officers’ Certificate and Opinion of Counsel as required by the terms of the Indenture;

 

2

 

 

WHEREAS, this Supplemental Indenture shall become effective and operative upon the date hereof (the “Effective Time”);

 

WHEREAS, Section 9.3 (Revocation and Effect of Consents) of the Base Indenture provides that, when a supplemental indenture becomes effective in accordance with its terms, it thereafter binds every Holder, including any subsequent Holder, of the Notes;

 

WHEREAS, this Supplemental Indenture is being entered into pursuant to Sections 9.2 (With Consent of Holders of Notes) and 9.5 (Trustee to Sign Amendments, etc.) of the Base Indenture;

 

AND WHEREAS, all acts and things necessary to make this Supplemental Indenture a valid agreement according to its terms have been done and performed, and the execution of this Supplemental Indenture and the amendments to the Base Indenture as provided herein has been duly authorized in all respects;

 

NOW THEREFORE, in consideration of the premises, and for the purpose of setting forth the amendments to the Base Indenture as provided herein, each of the Issuer and the Guarantors covenants and agrees with the Trustee as follows:

 

ARTICLE 1

Defined Terms

 

Section 1.01           Definition of Base Indenture. In this Supplemental Indenture, “Base Indenture” has the meaning set forth in the recitals above.

 

Section 1.02          Defined Terms. Capitalized terms used in this Supplemental Indenture without definition shall have the meanings assigned to them in the Indenture or in the preamble or recitals thereto. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

 

ARTICLE 2

Amendments to the Base Indenture

 

Section 2.01         Amendments to Section 1.1 (Definitions). Subject to Section 3.01 (Effectiveness) hereof, Section 1.1 (Definitions) of the Base Indenture is hereby amended and restated to (i) replace each of the definitions of “Change of Control” and “IFRS” to read in its entirety as provided below; and (ii) include new definitions of “Merger Parent Entity”, “Merger Transaction”, “Transaction Agreement” and “U.S. GAAP” as provided below:

 

(a)            “Change of Control” means the occurrence of any of the following:

 

(1)              the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or transfer of SKA’s Voting Stock), in one or a series of related transactions, of all or substantially all of the properties or assets of SKA and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than another Parent Guarantor;

 

3

 

 

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

 

(3)               the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) other than a Parent Guarantor or other direct or indirect parent company that is wholly owned by a Parent Guarantor becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of SKA, measured by voting power rather than number of shares.

 

Notwithstanding the foregoing, the consummation of the Merger Transaction (including the direct or indirect acquisition of SKG by the Merger Parent Entity) pursuant to the terms of the Transaction Agreement, shall not constitute a Change of Control.”

 

(b)           “IFRS” means International Financial Reporting Standards as adopted by the European Union, International Financial Reporting Interpretations Committee as in effect as of the date of this Indenture; provided, however, that all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with IFRS as in effect on the date of such report or other financial information; provided, further, that at any time after completion of the Merger Transaction, the Issuer may elect irrevocably, and notify the Trustee and the Holders of such election, that IFRS shall mean U.S. GAAP as in effect on the date of such election; provided, however, that following such election all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with U.S. GAAP as in effect on the date of such report or other financial information. All ratios and computations based on IFRS contained in this Indenture will be computed in conformity with IFRS or U.S. GAAP, as applicable.”

 

(c)            “Merger Parent Entity” means Cepheidway Limited, a private company limited by shares incorporated under the laws of Ireland (to be renamed and re-registered as Smurfit WestRock plc, a public company limited by shares incorporated under the laws of Ireland), or such other entity, in each case, which will become the direct or indirect shareholder of SKG in connection with the Merger Transaction and which is expected to be listed on the New York Stock Exchange and/or the London Stock Exchange.”

 

(d)          “Merger Transaction” means the business combination of SKG group and WestRock Company, a Delaware corporation (“WestRock”) to be consummated pursuant to the Transaction Agreement.”

 

4

 

 

(e)           “Transaction Agreement” means the transaction agreement dated September 12, 2023, by and among, inter alios, SKG and WestRock, as amended, supplemented or modified from time to time.”

 

(f)            “U.S. GAAP” means generally accepted accounting principles in the United States as set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States.”

 

Section 2.02           Amendments to Certain Covenants.

 

(a)           Subject to Section 3.01 (Effectiveness) hereof, sub-section (b) of Section 4.17 (Reports) of the Base Indenture is hereby amended and restated to read in its entirety as follows:

 

(b)           “For so long as any Notes are outstanding, the Issuer will provide to the Trustee such other information as SKG is required to make publicly available under the requirements of Euronext Dublin, the London Stock Exchange or the New York Stock Exchange as a result of having its ordinary shares admitted for trading on such exchanges. Upon complying with the public reporting requirements of Euronext Dublin, the London Stock Exchange or the New York Stock Exchange (regardless of whether SKG’s ordinary shares are admitted for trading on either such exchange), provided that such requirements include an obligation to prepare and make publicly available annual reports, information, documents and other reports with Euronext Dublin, the London Stock Exchange or the New York Stock Exchange, the Issuer will be deemed to have complied with the provisions contained in clauses (1) through (3) of Section 4.17(a).”

 

(c)           Subject to Section 3.01 (Effectiveness) hereof, a new sub-section (d) is added at the end of Section 4.17 (Reports) of the Base Indenture as follows:

 

(d)           “After completion of the Merger Transaction, the Issuer may elect, and shall notify the Trustee and the Holders of the Notes of such election, to submit to the Trustee and the Holders of the Notes, the financial statements, reports and other information of the Merger Parent Entity to comply with sub-sections (a) and (b) of this Section 4.17, instead of such information of SKG. If the Issuer makes such election, then it will be deemed to have provided such information to the Trustee, the Holders of the Notes and prospective purchasers if such information referenced above in sub-sections (a)(1) through (a)(3) and sub-section (b) of this Section 4.17 has been posted on Merger Parent Entity’s website.”

 

Section 2.03          Corresponding Amendments. With effect on and from the date hereof, each Global Note shall be deemed supplemented, modified and amended in such manner as necessary to make the terms of such Global Note consistent with the terms of the Indenture, as amended by this Supplemental Indenture. To the extent of any conflict between the terms of the Notes and the terms of the Indenture, as amended by this Supplemental Indenture, the terms of the Indenture, as amended by this Supplemental Indenture, shall govern and be controlling.

 

5

 

 

ARTICLE 3

Miscellaneous

 

Section 3.01           Effectiveness. The provisions of this Supplemental Indenture shall be effective and operative upon the Effective Time.

 

Section 3.02          Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.

 

Section 3.03           Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

Section 3.04           Severability. In case any one or more of the provisions in this Supplemental Indenture shall be held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

Section 3.05           Ratification of Base Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Base Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

Section 3.06         Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

Section 3.07          Incorporation by Reference. Section 11.8 (Submission to Jurisdiction; Appointment of Agent for Service) of the Base Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

Section 3.08          Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof.

 

Section 3.09          Successors. All covenants and agreements of the Issuer, the Guarantors and the Trustee in this Supplemental Indenture shall bind their respective successors and assigns.

 

Section 3.10          Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

(Signature pages follow)

 

6

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY, as Issuer
   
  By: /s/ Emer Murnane
    Name: Emer Murnane
    Title: Director
   
  SMURFIT KAPPA GROUP PLC, as a Parent Guarantor
   
  By: /s/ Kenneth Bowles
    Name: Kenneth Bowles
    Title: Director
   
  SMURFIT KAPPA INVESTMENTS LIMITED, as a Parent Guarantor
   
  By: /s/ Kenneth Bowles
    Name: Kenneth Bowles
    Title: Director
   
  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY, as a Parent Guarantor
   
  By: /s/ Emer Murnane
    Name: Emer Murnane
    Title: Director

 

(Signature page to Supplemental Indenture – 2027 Notes)

 

 

 

 

   
  SMURFIT INTERNATIONAL B.V., as a Subsidiary Guarantor
   
  By: /s/ PJA Koelewijn
    Name: PJA Koelewijn
    Title: Director
   
  SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY, as a Subsidiary Guarantor
   
  By: /s/ Emer Murnane
    Name: Emer Murnane
    Title: Director

 

(Signature page to Supplemental Indenture – 2027 Notes)

 

 

 

 

   
  DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee
   
  By: /s/ Robert Bebb
    Name: Robert Bebb
    Title: Associate Director
   
   
  By: /s/ Paul Berwick
    Name: Paul Berwick
    Title: Associate Director

 

(Signature page to Supplemental Indenture — 2027 Notes)

 

 

 

 

 

 

 

 

Exhibit 4.11

 

SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of July 5, 2024, among (i) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland (the “Issuer”); (ii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors”); and (iii) Deutsche Trustee Company Limited, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS the Issuer, the guarantors party thereto, the Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar, have heretofore executed an Indenture, dated as of September 16, 2019 (as amended or supplemented to the date hereof, the “Indenture”), providing for the issuance of 1.50% Senior Notes due 2027 (the “Notes”) by the Issuer;

 

WHERAS Smurfit Kappa Group plc, an Irish public limited company (“SKG”), the indirect parent of the Issuer, has entered into a transaction agreement, dated as of September 12, 2023, with WestRock Company, a Delaware corporation (“WestRock”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Smurfit WestRock (the “Transaction Agreement”);

 

WHEREAS, pursuant to the terms of the Transaction Agreement, the parties thereto agreed to consummate a combination (the “Combination”), following which Smurfit WestRock will be the parent of each of SKG and WestRock;

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all of the other applicable provisions of the Indenture and the Notes (the “New Guarantees”); and

 

WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer, the New Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.            Agreement to Guarantee. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.            Agreement to be Bound. Each New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

1

 

 

3.            Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

4.            Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.            Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart signature page by facsimile, e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

7.            Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.            Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

[Signature pages follow]

 

2

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

Issuer

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2019 Indenture]

 

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT WESTROCK PLC

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2019 Indenture]

 

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION

 

By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2019 Indenture]

 

 

 

 

WESTROCK COMPANY

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2019 Indenture]

 

 

 

 

WRKCO INC.

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2019 Indenture]

 

 

 

 

WESTROCK MWV, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2019 Indenture]

 

 

 

 

WESTROCK RKT, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2019 Indenture]

 

 

 

 

  Deutsche Trustee Company Limited, as Trustee
   
  By: /s/ J. Woodger
    Name: J. Woodger
    Title: Associate Director
     
  By: /s/ Lauren Taylor
    Name: Lauren Taylor
    Title: Associate Director

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2019 Indenture]

 

 

 

 

Exhibit 4.12

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY,
as Issuer,

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY,
as a Parent Guarantor,

 

SMURFIT KAPPA HOLDINGS LIMITED,
as a Parent Guarantor,

 

SMURFIT KAPPA INVESTMENTS LIMITED,
as a Parent Guarantor,

 

SMURFIT KAPPA GROUP PLC,
as a Parent Guarantor,

 

the Subsidiary Guarantors named herein,

 

DEUTSCHE TRUSTEE COMPANY LIMITED,
as Trustee,

 

DEUTSCHE BANK AG, LONDON BRANCH,
as Paying Agent

 

and

 

DEUTSCHE BANK LUXEMBOURG S.A.,
as Transfer Agent and Registrar

 

 

 

INDENTURE

 

Dated as of September 22, 2021

 

 

 

0.50% Senior Notes due 2029

 

1.00% Senior Notes due 2033

 

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 1
SECTION 1.1 Definitions 1
SECTION 1.2 Incorporation by Reference of TIA 15
SECTION 1.3 Rules of Construction 16
ARTICLE II THE NOTES 16
SECTION 2.1 Form and Dating 16
SECTION 2.2 Execution and Authentication 17
SECTION 2.3 Registrar and Paying Agent 18
SECTION 2.4 Paying Agent To Hold Money 19
SECTION 2.5 List of Holders 20
SECTION 2.6 Book-Entry Provisions for Global Notes 20
SECTION 2.7 Registration of Transfer and Exchange 21
SECTION 2.8 Replacement Notes 26
SECTION 2.9 Outstanding Notes 26
SECTION 2.10 Treasury Notes 27
SECTION 2.11 Temporary Notes 27
SECTION 2.12 Cancellation 27
SECTION 2.13 Defaulted Interest 28
SECTION 2.14 ISINs and Common Codes 28
SECTION 2.15 Deposit of Moneys 28
SECTION 2.16 Certain Matters Relating to Global Notes 29
SECTION 2.17 Interest 29
SECTION 2.18 New Safekeeping Structure 29
SECTION 2.19 Election of Common Safekeeper 29
SECTION 2.20 Authority to Authenticate and Effectuate 29
ARTICLE III REDEMPTION 30
SECTION 3.1 Optional Redemption 30
SECTION 3.2 Notices to Trustee 30
SECTION 3.3 Selection of Notes to Be Redeemed 30
SECTION 3.4 Notice of Redemption 30

 

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SECTION 3.5 Effect of Notice of Redemption 31
SECTION 3.6 Deposit of Redemption Price 32
SECTION 3.7 Notes Redeemed in Part 32
ARTICLE IV COVENANTS 32
SECTION 4.1 Payment of Notes 32
SECTION 4.2 Maintenance of Office or Agency 33
SECTION 4.3 [Intentionally omitted] 33
SECTION 4.4 [Intentionally omitted] 33
SECTION 4.5 [Intentionally omitted] 33
SECTION 4.6 [Intentionally omitted] 33
SECTION 4.7 [Intentionally omitted] 33
SECTION 4.8 Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries 33
SECTION 4.9 [Intentionally omitted] 34
SECTION 4.10 Negative Pledge 34
SECTION 4.11 [Intentionally omitted] 34
SECTION 4.12 [Intentionally omitted] 34
SECTION 4.13 [Intentionally omitted] 34
SECTION 4.14 [Intentionally omitted] 34
SECTION 4.15 [Intentionally omitted] 34
SECTION 4.16 [Intentionally omitted] 34
SECTION 4.17 [Intentionally omitted] 34
SECTION 4.18 [Intentionally omitted] 34
SECTION 4.19 Change of Control Repurchase Event 35
SECTION 4.20 Additional Amounts 36
SECTION 4.21 [Intentionally omitted] 37
SECTION 4.22 [Intentionally omitted] 37
SECTION 4.23 [Intentionally omitted] 37
SECTION 4.24 [Intentionally omitted] 37
SECTION 4.25 [Intentionally omitted] 37
SECTION 4.26 [Intentionally omitted] 37
ARTICLE V SUCCESSOR CORPORATION 38
SECTION 5.2 Successor Corporation Substituted 39

 

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ARTICLE VI DEFAULT AND REMEDIES 39
SECTION 6.1 Events of Default 39
SECTION 6.2 Acceleration 40
SECTION 6.3 Other Remedies 41
SECTION 6.4 The Trustee May Enforce Claims Without Possession of Securities 41
SECTION 6.5 Rights and Remedies Cumulative 41
SECTION 6.6 Delay or Omission Not Waiver 41
SECTION 6.7 Waiver of Past Defaults 41
SECTION 6.8 Control by Majority 42
SECTION 6.9 Limitation on Suits 42
SECTION 6.10 Collection Suit by Trustee 42
SECTION 6.11 Trustee May File Proofs of Claim 43
SECTION 6.12 Priorities 43
SECTION 6.13 Restoration of Rights and Remedies 44
SECTION 6.14 Undertaking for Costs 44
SECTION 6.15 Additional Payments 44
ARTICLE VII TRUSTEE 44
SECTION 7.1 Duties of Trustee 44
SECTION 7.2 Rights of Trustee 45
SECTION 7.3 Individual Rights of Trustee 46
SECTION 7.4 Trustee’s Disclaimer 47
SECTION 7.5 Notice of Default 47
SECTION 7.6 Compensation and Indemnity 47
SECTION 7.7 Replacement of Trustee 48
SECTION 7.8 Successor Trustee by Merger, etc 49
SECTION 7.9 Eligibility; Disqualification 49
SECTION 7.10 Disqualification; Conflicting Interests 49
SECTION 7.11 [Intentionally omitted] 50
SECTION 7.12 Force Majeure 50
SECTION 7.13 Consequential Loss 50
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE 50
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance 50

 

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SECTION 8.2 Legal Defeasance and Discharge 50
SECTION 8.3 Covenant Defeasance 51
SECTION 8.4 Conditions to Legal or Covenant Defeasance 51
SECTION 8.5 Satisfaction and Discharge of Indenture 52
SECTION 8.6 Survival of Certain Obligations 53
SECTION 8.7 Acknowledgment of Discharge by Trustee 53
SECTION 8.8 Application of Trust Moneys 53
SECTION 8.9 Repayment to the Issuer; Unclaimed Money 54
SECTION 8.10 Reinstatement 54
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS 55
SECTION 9.1 Without Consent of Holders of Notes 55
SECTION 9.2 With Consent of Holders of Notes 56
SECTION 9.3 Revocation and Effect of Consents 58
SECTION 9.4 Notation on or Exchange of Notes 58
SECTION 9.5 Trustee to Sign Amendments, etc 58
ARTICLE X GUARANTEES 59
SECTION 10.1 Guarantee 59
SECTION 10.2 Limitation on Liability 60
SECTION 10.3 Successors and Assigns 61
SECTION 10.4 No Waiver 61
SECTION 10.5 Modification 61
SECTION 10.6 Release of Guarantor 61
SECTION 10.7 Execution of Supplemental Indenture for Future Guarantors 62
ARTICLE XI MISCELLANEOUS 62
SECTION 11.1 Notices 62
SECTION 11.2 Communications by Holders with Other Holders 64
SECTION 11.3 Certificate and Opinion as to Conditions Precedent 64
SECTION 11.4 Statements Required in Certificate or Opinion 65
SECTION 11.5 Rules by Trustee, Paying Agent, Registrar, Transfer Agent 65
SECTION 11.6 Legal Holidays 65
SECTION 11.7 Governing Law 65
SECTION 11.8 Submission to Jurisdiction; Appointment of Agent for Service 65

 

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SECTION 11.9 No Adverse Interpretation of Other Agreements 66
SECTION 11.10 No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders 66
SECTION 11.11 Currency Indemnity 66
SECTION 11.12 Currency Calculation 67
SECTION 11.13 Information 67
SECTION 11.14 Successors 67
SECTION 11.15 Counterpart Originals 67
SECTION 11.16 Severability 67
SECTION 11.17 Table of Contents, Headings, etc 67

 

SCHEDULES  
   
Schedule A - Subsidiary Guarantors

 

EXHIBITS  
   
Exhibit A-1 - Form of 2029 Global Note
Exhibit A-2 Form of 2033 Global Note
Exhibit B-1 - Form of 2029 Definitive Note
Exhibit B-2 Form of 2033 Definitive Note
Exhibit C-1 - Form of Transfer Certificate for Transfer from 2029 Rule 144A Global  Note to 2029 Regulation S Global Note
Exhibit C-2 Form of Transfer Certificate for Transfer from 2033 Rule 144A Global  Note to 2033 Regulation S Global Note
Exhibit D - Form of Supplemental Indenture
Exhibit E New Safekeeping Structure Duties

 

v

 

 

INDENTURE, dated as of September 22, 2021, among: (i) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (ii) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKA”), (iii)      Smurfit Kappa Holdings Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKHL”), (iv)      Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKIL”), and (v) Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKG” together with SKA, SKHL and SKIL, the “Parent Guarantors”), (vi) the Subsidiary Guarantors named in Schedule A hereto, (vii) Deutsche Trustee Company Limited, as Trustee, (viii) Deutsche Bank AG, London Branch, as Paying Agent and (ix) Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar.

 

The Issuer has duly authorized the creation and issuance of its 0.50% Senior Notes due 2029 issued on the date hereof (the “Original 2029 Notes”) and the creation and issuance of its 1.00% Senior Notes due 2033 issued on the date hereof (the “Original 2033 Notes” and, together with the Original 2029 Notes, the “Original Notes”) and the Issuer may issue, from time to time after the date hereof, an unlimited principal amount of additional securities having identical terms and conditions as any series of the Original 2029 Notes (the “Additional 2029 Notes” and, together with the Original 2029 Notes, the “2029 Notes”) or any series of the Original 2033 Notes (the “Additional 2033 Notes” and, together with the Original 2033 Notes, the “2033 Notes”); and, to provide therefor, the Issuer has duly authorized the execution and delivery of this Indenture. The Additional 2029 Notes and the Additional 2033 Notes, collectively, shall be referred to herein as the “Additional Notes”. The Original Notes and the Additional Notes, collectively, shall be referred to herein as the “Notes”. The aggregate principal amount of 2029 Notes that shall be issued on the date hereof equals €500.0 million and the aggregate principal amount of 2033 Notes that shall be issued on the date hereof equals €500.0 million.

 

Each party hereto agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes:

 

ARTICLE I

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.1         Definitions. For purposes of this Indenture, unless otherwise specifically indicated herein, the term “consolidated” with respect to any Person refers to such Person consolidated with its Subsidiaries. In addition, for purposes of the following definitions and this Indenture generally, all ratios and computations based on IFRS shall be made in accordance with IFRS and shall be based upon the consolidated financial statements of SKG and its subsidiaries prepared in conformity with IFRS. As used in this Indenture, the following terms shall have the following meanings:

 

“2029 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

 

 

“2033 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Additional Amounts” shall have the meaning set forth in Section 4.20(b).

 

“Additional 2029 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Additional 2033 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Additional Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control”, as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling”, “controlled by” and “under common control with” shall have correlative meanings.

 

“Agent” means any Paying Agent, Registrar or Transfer Agent.

 

“Agent Members” shall have the meaning set forth in Section 2.16(a).

 

“Attributable Debt” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with IFRS.

 

“Authenticating Agent” shall have the meaning set forth in Section 2.2.

 

“Authorized Agent” shall have the meaning set forth in Section 11.8.

 

“Bankruptcy Law” means (i) for purposes of the Issuer, any bankruptcy, insolvency, winding-up or other similar statute (including the relevant provisions of the Irish Companies Act 2014 and the examinership court protection procedure), regulation or provision of any jurisdiction in which the Issuer is organized or conducting business and (ii) for purposes of the Trustee and the Holders, Title 11, U.S. Code or any similar United States Federal, state or foreign law for the relief of creditors.

 

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” shall have a corresponding meaning.

 

2

 

 

“Board of Directors” means: (1) with respect to a corporation, the board of directors (or analogous governing body) of the corporation or any committee thereof duly authorized to act on behalf of such board; (2) with respect to a partnership, the board of directors of the general partner of the partnership; (3) with respect to any limited liability company, the managing member or members (or analogous governing body) or any controlling committee of managing members thereof; and (4) with respect to any other Person, the board or committee of such Person serving a similar function.

 

“Board Resolution” means a duly authorized resolution of the Board of Directors of the Issuer certified by an Officer and delivered to the Trustee.

 

“Bund Rate” as selected by the Issuer with respect to any relevant date, means the rate per annum at the time of computation equal to the equivalent yield to maturity as of such date of the Comparable German Bund Issue, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such relevant date, where:

 

“Comparable German Bund Issue” means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such redemption date to June 22, 2029, in the case of the 2029 Notes, and June 22, 2033, in the case of the 2033 Notes, and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro-denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to June 22, 2029, in the case of the 2029 Notes, and June 22, 2033, in the case of the 2033 Notes; provided, however, that, if the period from such redemption date to June 22, 2029, in the case of the 2029 Notes, and June 22, 2033, in the case of the 2033 Notes, is less than one year, a fixed maturity of one year shall be used;

 

“Comparable German Bund Price” means, with respect to any relevant date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations;

 

“Reference German Bund Dealer” means any dealer of German Bundesanleihe securities appointed by the Issuer in consultation with the Trustee; and

 

“Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any relevant date, the average as determined by the Issuer of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day preceding the relevant date.

 

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City, Dublin or London.

 

“Capital Stock” means:

 

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(1)in the case of a corporation, corporate stock;

 

(2)in the case of a company, shares of such company;

 

(3)in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(4)in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

(5)any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person;

 

provided that debt securities convertible into interests specified in (1) through (5) above shall not be deemed “Capital Stock.”

 

“Change in Tax Law” shall have the meaning set forth in Paragraph 8 of any Note.

 

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

 

(1)the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or transfer of SKA’s Voting Stock), in one or a series of related transactions, of all or substantially all of the properties or assets of SKA and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than another Parent Guarantor;

 

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

 

(3)the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) other than a Parent Guarantor or other direct or indirect parent company that is wholly owned by a Parent Guarantor becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of SKA, measured by voting power rather than number of shares.

 

“Change of Control Offer” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment Date” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Repurchase Event” means, with respect to any series of Notes, the occurrence of a Change of Control where:

 

(1)if there are two Rating Agencies engaged by SKA or the Issuer providing ratings for such series of Notes on the first day of the Change of Control Trigger Period with respect to such Change of Control and if on such day such series of Notes is rated by both Rating Agencies as having an Investment Grade rating, both Rating Agencies engaged by SKA or the Issuer cease to rate such series of Notes Investment Grade during such Change of Control Trigger Period;

 

4

 

 

(2)if there are three Rating Agencies engaged by SKA or the Issuer providing a rating for such series of Notes on the first day of the Change of Control Trigger Period with respect to such Change of Control and if on such day such series of Notes is rated by all such Rating Agencies as having an Investment Grade rating, two or more Rating Agencies engaged by SKA or the Issuer cease to rate such series of Notes as Investment Grade during such Change of Control Trigger Period; or

 

(3)if on the first day of the Change of Control Trigger Period with respect to such Change of Control, such series of Notes is rated by at least two Rating Agencies engaged by SKA or the Issuer and at least one such Rating Agency has then rated such series of Notes as having a rating below Investment Grade and (a) there is a decrease in the rating of such series of Notes by two (or one, if only one Rating Agency has rated such series of Notes as Investment Grade immediately prior to such Change of Control Trigger Period and such Rating Agency ceases to rate such series of Notes as Investment Grade during such Change of Control Trigger Period as a result of such downgrade) Rating Agencies during the Change of Control Trigger Period, which decrease results in the rating on such series of Notes by each such Rating Agency being at least one rating category below the rating of such series of Notes issued by each such Rating Agency immediately preceding the Change of Control Trigger Period (provided that any downgrade by any Rating Agency that rated such series of Notes as Investment Grade immediately prior to such Change of Control Trigger Period will be disregarded for purposes of this clause (3) unless such Rating Agency engaged by SKA or the Issuer ceases to rate such series of Notes as Investment Grade during such Change of Control Trigger Period as a result of such downgrade); or (b) all Rating Agencies engaged by SKA or the Issuer have rated such series of Notes as having a rating below Investment Grade on the first day of the Change of Control Trigger Period and there is a decrease in the rating of such series of Notes by at least one Rating Agency during the Change of Control Trigger Period, which decrease results in the rating on such series of Notes by such Rating Agency being at least one rating category below the rating of such series of Notes issued by such Rating Agency immediately preceding the Change of Control Trigger Period; or (c) a change of control is deemed to occur under any series of Existing Senior Notes and SKA or the Issuer, as the case may be, is required to make an offer to repurchase any such Existing Senior Notes as a result of such change of control pursuant to the indentures governing such Existing Senior Notes;

 

provided, however, that if there are not at least two Rating Agencies engaged by SKA or the Issuer providing a rating for any series of Notes on the first day of any Change of Control Trigger Period, a Change of Control Repurchase Event with respect to such series of Notes shall be deemed to have occurred. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.

 

5

 

 

“Change of Control Trigger Period” means, with respect to any Change of Control, the period commencing upon the earlier of (i) the occurrence of such Change of Control or (ii) 90 days prior to the date of the first public announcement of such Change of Control (or pending Change of Control) and ending 90 days following consummation of such Change of Control (which Change of Control Trigger Period will be extended following consummation of a Change of Control for so long as any of the Rating Agencies engaged by SKA or the Issuer has publicly announced that it is considering a possible downgrade of the Notes).

 

“Clearing Agency” means one or more of Euroclear, Clearstream Banking, or the successor of either of them, in each case acting directly, or through a custodian, nominee or depository.

 

“Clearstream Banking” means Clearstream Banking S.A.

 

“Closing Date” means the date of this Indenture.

 

“Code” means the United States Internal Revenue Code of 1986, as amended.

 

“Commission” means the United States Securities and Exchange Commission, or any successor entity thereof from time to time.

 

“Common Safekeeper” means the common safekeeper for Euroclear and Clearstream Banking, which shall initially be Clearstream Banking until a successor, if any, replaces it, and thereafter means the successor serving hereunder.

 

“Consolidated Net Tangible Assets” means, as of any date of determination, the total amount of all assets of SKG and its Subsidiaries, determined on a consolidated basis in accordance with IFRS, as of the end of the most recent fiscal quarter for which SKG’s financial statements are available (but which may give pro forma effect to the acquisition of any assets or liabilities following the end of such recent fiscal quarter up to and including the determination date), less the sum of:

 

(1)SKG’s consolidated current liabilities as of such quarter end (other than (a) short-term borrowings and (b) long-term debt due within one year), determined on a consolidated basis in accordance with IFRS; and

 

(2)SKG’s consolidated assets that are properly classified as intangible assets as of such quarter end, determined on a consolidated basis in accordance with IFRS.

 

“Consolidated Total Assets” means, as of any date of determination, the total amount of all assets of SKG and its Subsidiaries, determined on a consolidated basis in accordance with IFRS, as of the end of the most recent fiscal quarter for which SKG’s financial statements are available.

 

“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any dividend or other obligation that, in each case, does not constitute Indebtedness (“primary obligation”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent.

 

“Covenant Defeasance” shall have the meaning set forth in Section 8.3.

 

6

 

 

“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

“Default Interest Payment Date” shall have the meaning set forth in Section 2.13.

 

“Definitive Notes” means Notes in definitive registered form substantially in the form of Exhibits B-1 and B-2 hereto.

 

“Euroclear” means Euroclear Bank SA/NV.

 

“Euronext Dublin” shall have the meaning set forth in Section 2.3.

 

“Event of Default” shall have the meaning set forth in Section 6.1.

 

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

 

“Existing Senior Notes” means the Existing SKA Senior Notes and the €750.0 million in aggregate principal amount outstanding of 1.50% Senior Notes due 2027 issued by the Issuer.

 

“Existing SKA Senior Notes” means the (i) €250.0 million in aggregate principal amount outstanding of 2.75% Senior Notes due 2025 issued by SKA; and (ii) €1,000.0 million in aggregate principal amount outstanding of 2.875% Senior Notes due 2026 issued by SKA.

 

“Fitch” means Fitch, Inc., a subsidiary of Fimalac, S.A., and its successors.

 

“Global Notes” means the Regulation S Global Notes and the Rule 144A Global Notes.

 

“guarantee” means a guarantee, contingent or otherwise, of all or any part of any Indebtedness (other than by endorsement of negotiable instruments for collection in the ordinary course of business), including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof.

 

“Guarantee” means any guarantee by a Guarantor of the Issuer’s obligations under this Indenture and the Notes pursuant to the terms of this Indenture.

 

“Guarantee Obligations” shall have the meaning set forth in Section 10.1(a).

 

“Guarantor” means the Parent Guarantors, the Subsidiary Guarantors and their respective successors and assigns, in each case, until the Guarantee of such Person has been released in accordance with the provisions of this Indenture.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements; and (2) other similar agreements or arrangements designed to enable such Person to manage fluctuations in interest rates.

 

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

 

7

 

 

“IFRS” means International Financial Reporting Standards as adopted by the European Union, International Financial Reporting Interpretations Committee as in effect as of the date of this Indenture; provided, however, that all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with IFRS as in effect on the date of such report or other financial information. All ratios and computations based on IFRS contained in this Indenture will be computed in conformity with IFRS.

 

“Indebtedness” means, with respect to any specified Person, any Indebtedness of such Person, whether or not contingent, in respect of:

 

(1)borrowed money;

 

(2)bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(3)banker’s acceptances, letters of credit and similar instruments;

 

(4)Lease Obligations and Attributable Debt;

 

(5)the deferred balance of the purchase price of any property which remains unpaid more than one year after such property is acquired, except any such balance that constitutes an accrued expense, a trade payable or a similar current liability; or

 

(6)any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with IFRS. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person. Notwithstanding the foregoing and for the avoidance of doubt, the term “Indebtedness” shall not include: (1) Contingent Obligations in the ordinary course of business; (2) in connection with the purchase by SKA or any of its Subsidiaries of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; and (3) any contingent obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage taxes.

 

The amount of any Indebtedness outstanding as of any date shall be:

 

(1)the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and

 

(2)the principal amount thereof in the case of any other Indebtedness.

 

8

 

 

In addition, Indebtedness of any Person shall include Indebtedness described in the preceding paragraph that would not appear as a liability on the balance sheet of such Person if:

 

(1)such Indebtedness is the obligation of a partnership or joint venture that is not a Subsidiary of such Person (a “Joint Venture”);

 

(2)such Person or a Subsidiary of such Person is a general partner of the Joint Venture (a “General Partner”); and

 

(3)there is recourse, by contract or operation of law, with respect to the payment of such Indebtedness to property or assets of such Person or a Subsidiary of such Person; and then such Indebtedness shall be included in an amount not to exceed:

 

(a)           the lesser of (i) the net assets of the General Partner and (ii) the amount of such obligations to the extent that there is recourse, by contract or operation of law, to the property or assets of such Person or a Subsidiary of such Person; or

 

(b)            if less than the amount determined pursuant to clause (i) immediately above, the actual amount of such Indebtedness that is recourse to such Person or a Subsidiary of such Person, if the Indebtedness is evidenced by a writing and is for a determinable amount and the related interest expense shall be included in consolidated interest expense to the extent actually paid by SKA or its Subsidiaries.

 

“Indenture” means this Indenture, as amended, modified or supplemented from time to time in accordance with the terms hereof.

 

“Investment Grade” means (a) a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); (b) a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P); and (c) a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch).

 

“Issue Date” means the date on which Notes are originally issued under this Indenture.

 

“Issuer” means the party named as such in this Indenture until a successor replaces it pursuant to this Indenture and thereafter means such successor.

 

“Issuer Order” means a written order or request signed in the name of the Issuer by (i) two Officers of the Issuer, one of whom must be the Chief Executive Officer, the President, the Chief Financial Officer or the Finance Director of the Issuer or any other Officer so authorized or (ii) two members of the Board of Directors of the Issuer, and delivered to the Trustee.

 

“Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a lease that would at that time be required to be capitalized on a balance sheet in accordance with IFRS.

 

“Legal Defeasance” shall have the meaning set forth in Section 8.2.

 

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“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement.

 

“Maturity Date” means (i) with respect to the 2029 Notes, September 22, 2029, and (ii) with respect to the 2033 Notes, September 22, 2033.

 

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

 

“Notes” shall have the meaning set forth in the preamble of this Indenture.

 

“Offering Memorandum” means the Offering Memorandum of the Issuer, dated September 15, 2021, relating to the Notes.

 

“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer or the Secretary of SKG, SKHL or the Issuer, as applicable.

 

“Officers’ Certificate” means a certificate signed by two Officers of SKG, SKHL or the Issuer, as applicable.

 

“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee.

 

“Original 2029 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Original 2033 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Original Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Other Hedging Agreements” means any foreign exchange contracts, currency swap agreements, futures contract, option contract, commodity futures contract, commodity option, commodity swap, commodity collar agreement, commodity cap agreements or other similar agreements or arrangements designed to enable such Person to manage the fluctuations in currency or commodity values.

 

“Parent Guarantors” means the parties named as such in this Indenture or any successor entity.

 

“Paying Agent” shall have the meaning set forth in Section 2.3.

 

“Payment Default” shall have the meaning set forth in Section 6.1(4)(a).

 

“Payor” means the Issuer or a successor thereof.

 

“Permitted Interest” means any Securitization Lien or other Lien that arises in relation to any securitization or other structured finance transaction where:

 

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(1)the primary source or payment of any obligations of the issuer is linked or otherwise related to cash flow from particular property or assets (or where payment of such obligations is otherwise supported by such property or assets); and

 

(2)recourse to the issuer in respect of such obligations is conditional on cash flow from such property or assets.

 

“Permitted Liens” means:

 

(1)Liens created for the benefit of or to secure the Notes or the Guarantees;

 

(2)Liens in favor of SKA or any Subsidiary of SKA;

 

(3)Liens on property or assets or shares of stock of a Person existing at the time such Person is merged with or into or consolidated with SKA or any Subsidiary of SKA; provided that such Liens were not incurred in contemplation of such merger or consolidation and do not extend to any Principal Property other than such property of the Person merged into or consolidated with SKA or the Subsidiary of SKA;

 

(4)Liens on property or assets or shares of stock existing at the time of acquisition thereof by SKA or any Subsidiary of SKA and purchase money or similar Liens; provided that such Liens were not incurred in contemplation of such acquisition and do not extend to any other property, assets or shares of stock, as applicable;

 

(5)Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature or arising by operation of law incurred in the ordinary course of business;

 

(6)Liens to secure certain development, construction, alteration, repair or improvement costs or to secure Indebtedness incurred to provide funds for the reimbursement of funds expended for the foregoing purposes; provided that the Liens securing such costs or Indebtedness shall not extend to any Principal Property other than that being so developed, constructed, altered, repaired or improved;

 

(7)Liens existing on the date of the Indenture;

 

(8)Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith;

 

(9)statutory mechanics’, workmen’s, materialmen’s, operators’ or similar Liens arising by operation of law and in the ordinary course of business;

 

(10)Liens incurred in connection with government contracts, including the assignment of moneys due or to become due thereon;

 

(11)Liens securing Hedging Obligations or Other Hedging Agreements, in each case not for speculative purposes;

 

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(12)Liens arising in the ordinary course of business and not in connection with the borrowing of money or Liens to secure the payment of pension, retirement or similar obligations;

 

(13)Liens securing judgments or orders, or securing appeal or other surety bonds related to such judgments or orders, against SKA or any Subsidiary of SKA relating to litigation being contested in good faith by appropriate proceedings;

 

(14)Liens securing any Permitted Interest;

 

(15)extensions, substitutions, replacements or renewals of any of the foregoing Indebtedness; provided that (i) such Indebtedness is not increased and (ii) if the assets securing any such Indebtedness are changed in connection with any such extension, substitution, replacement or renewal, the value of the assets securing such Indebtedness is not increased;

 

(16)Liens incurred in connection with Lease Obligations (including any lease, concession, license of property, operating lease or other arrangement (or guarantee thereof) which are considered to be a finance lease or capital lease after implementation of IFRS 16 (Leases)); and

 

(17)Liens securing Indebtedness or other obligations in an amount not to exceed the greater of: (i) €500.0 million or (ii) 5.0% of the Consolidated Total Assets.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

“Principal Property” means any building, structure or other facility, together with the land upon which it is erected and fixtures comprising a part thereof or any production, processing or other similar equipment or machinery contained therein, owned or leased by SKA or any Subsidiary of SKA, used primarily for manufacturing, the net book value on the books of SKG of which on the date as of which the determination is being made exceeds €10.0 million, other than any such building, structure or other facility or any portion thereof or any such fixture, equipment or machinery (together with the land upon which it is erected and fixtures comprising a part thereof) which, in the opinion of the Board of Directors of SKA, is not of material importance to the total business conducted by SKA and its Subsidiaries taken as a whole.

 

“Private Placement Legend” means the legend set forth in Section 2.7(g).

 

“Public Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (1) a public offering registered under the Securities Act or (2) a private placement to institutional investors that is underwritten for resale in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the Commission for public resale. The term “Public Indebtedness,” for the avoidance of doubt, shall not be construed to include any Indebtedness issued to institutional investors in a direct placement of such Indebtedness that is not underwritten by an intermediary (it being understood that, without limiting the foregoing, a financing that is distributed to not more than ten Persons (provided that multiple managed accounts and affiliates of any such Persons shall be treated as one Person for the purposes of this definition) shall not be deemed underwritten), or any Indebtedness under the Revolving Facility Agreement, commercial bank or similar Indebtedness, Lease Obligation or recourse transfer of any financial asset or any other type of Indebtedness incurred in a manner not customarily viewed as a “securities offering” or in connection with any securitization or other structured finance transaction.

 

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“Purchase Agreement” means the Purchase Agreement dated as of the date of the Offering Memorandum, among the Issuer, the Guarantors and the Initial Purchasers.

 

“Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A under the Securities Act.

 

“Rating Agency” means each of Moody’s, S&P, Fitch or any other nationally recognized statistical rating agency or agencies, as the case may be, but only to the extent that such Rating Agency is then engaged by SKA or the Issuer to provide a rating for the Notes.

 

“Record Date” means a Record Date specified in any Note.

 

“Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 7 of the relevant series of Notes.

 

“Redemption Price” when used with respect to any Note to be redeemed, means the price fixed for such redemption pursuant to this Indenture and Paragraphs 7 and 8 of the relevant series of Notes.

 

“Registrar” shall have the meaning set forth in Section 2.3.

 

“Regulation S” means Regulation S (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Regulation S Global Note” shall have the meaning set forth in Section 2.1.

 

“Relevant Taxing Jurisdiction” shall have the meaning set forth in Section 4.20(a).

 

“Restricted Lien” shall have the meaning set forth in Section 4.10.

 

“Revolving Facility Agreement” means (i) the Revolving Facility Agreement dated 28 January 2019 between, among others, SKG as the parent, SKHL as the company, the other borrowers named therein, Banco Santander, S.A., London Branch, Barclays Bank plc, BNP Paribas, Dublin Branch, Credit Agricole Corporate and Investment Bank, Credit Lyonnais S.A., Citibank N.A., Jersey Branch, Commerzbank Aktiengesellschaft, Coöperatieve Rabobank U.A. trading as Rabobank Dublin, Danske Bank A/S, HSBC France, ING Bank N.V., Dublin Branch and Ulster Bank Ireland DAC as mandated lead arrangers; and National Westminster Bank plc as agent, as the same may be amended, supplemented or otherwise modified from time to time and (ii) any renewal, extension, refunding, restructuring, replacement, or refinancing thereof (whether with the original facilities agent and lenders or another facilities agent or agents or other lenders and whether provided under the Revolving Facility Agreement or any other agreement or indenture).

 

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“Rule 144” means Rule 144 (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Rule 144A” means Rule 144A (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Rule 144A Global Note” shall have the meaning set forth in Section 2.1.

 

“S&P” means Standard & Poor’s Ratings Group or any successor to the rating agency business thereof.

 

“Securities Act” means the United States Securities Act of 1933, as amended.

 

“Securitization Lien” means a customary back-up security interest granted as part of a sale, lease, transfer or other disposition of assets by SKA or any of its Subsidiaries to, either directly or indirectly, any issuer in a securitization or other structured finance transaction.

 

“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date hereof.

 

“SKA” means the party named as such in this Indenture, and any successor thereto, which serves as the issuer of the Existing SKA Senior Notes.

 

“SKA Successor” shall have the meaning set forth in Section 5.1.

 

“SKG” means the party named as such in this Indenture, and any successor thereto or any other entity that serves as the ultimate parent company of the Issuer.

 

“SKHL” means the party named as such in this Indenture, and any successor thereto.

 

“Subsidiary” means, with respect to any specified Person:

 

(1)any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

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(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 one or more Subsidiaries of such Person (or any combination thereof); provided, however, that for purposes of Section 4.10 and Section 6.1(5), the term “Subsidiary” shall exclude (i) any Subsidiary which is principally engaged in leasing or in financing installment receivables or which is principally engaged in financing the operations of SKA and its Subsidiaries or (ii) any financial entity whose accounts as of the date of determination are not required to be consolidated with the accounts of SKG in its audited consolidated financial statements or (iii) any Subsidiary that is an issuer in a securitization or other structured financing transaction, so long as in the case of clauses (ii) or (iii) such Subsidiary does not own any Principal Property.

 

“Subsidiary Guarantors” means (i) the Subsidiary Guarantors named in Schedule A hereto and (ii) each existing and future Subsidiary of SKA that provides a Guarantee in accordance with the covenant set forth in Section 4.8.

 

“Successor Issuer” shall have the meaning set forth in Section 5.1(1).

 

“Tax Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 8 of the relevant series of Notes.

 

“Taxes” shall have the meaning set forth in Section 4.20(a).

 

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

 

“Trust Officer” means any officer within Trust & Security Services (or any successor group of the Trustee), including any director, managing director, vice president, assistant vice president, corporate trust officer, assistant corporate trust officer, secretary, assistant secretary, treasurer, assistant treasurer, associate or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at that time shall be such officers having direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such trust matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

“Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and thereafter means such successor.

 

“U.S. Person” means a “U.S. person” as defined in Rule 902 under the Securities Act or any successor rule.

 

“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

SECTION 1.2         Incorporation by Reference of TIA. This Indenture is subject to the provisions of the TIA which as of the date hereof and thereafter as in effect are specifically incorporated by reference in, and made a part of, this Indenture. No other sections of the TIA are applicable to this Indenture.

 

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All TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by any rule of the Commission and not otherwise defined herein have the meanings assigned to them therein.

 

SECTION 1.3      Rules of Construction. Unless the context otherwise requires:

 

(a)           a term has the meaning assigned to it;

 

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

 

(c)            “or” is not exclusive;

 

(d)           the term “including” is not limiting;

 

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

 

(f)            provisions apply to successive events and transactions;

 

(g)           for purposes of this Indenture, the word “series”, when used in reference to any Notes, shall refer to whether such notes are 2029 Notes or 2033 Notes and each of the 2029 Notes and the 2033 Notes shall constitute a separate series of Notes;

 

(h)           the word “Additional” (e.g., in “Additional 2029 Notes” or “Additional 2033 Notes”), when used in reference to any series of Original Notes, shall mean Additional Notes of such series; and

 

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

 

ARTICLE II

THE NOTES

 

SECTION 2.1         Form and Dating. The Notes and the notation relating to the Trustee’s certificate of authentication thereof, shall be substantially in the form of Exhibits A-1, A-2, B-1 or B-2, as applicable. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage; provided that any such notations, legends or endorsements are in a form reasonably acceptable to the Issuer. The Issuer and the Trustee shall approve the forms of the Notes and any notation, legend or endorsement on them. Each Note shall be dated the date of its issuance and shall show the date of its authentication.

 

The terms and provisions contained in the Notes, annexed hereto as Exhibits A-1, A-2, B1 or B-2, shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Issuer, Trustee, the Registrar and the Paying Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. The Notes will initially be represented by the Global Notes.

 

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Notes offered and sold to non-U.S. persons outside the United States in offshore transactions in their initial distribution in reliance on Regulation S shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A-1 or Exhibit A-2 hereto, with such applicable legends as are provided in Exhibit A-1 or Exhibit A-2, as applicable, except as otherwise permitted herein (together with all other Notes that are not Rule 144A Global Notes, the “Regulation S Global Notes”). The aggregate principal amount of the Regulation S Global Notes of any series may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Regulation S Global Note of the same series), in connection with a corresponding decrease or increase in the aggregate principal amount of the Rule 144A Global Notes of the same series or in consequence of the issue of Definitive Notes of the same series or additional Regulation S Global Notes of the same series, as hereinafter provided.

 

Notes offered and sold in their initial distribution to QIBs in reliance on Rule 144A shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A-1 or Exhibit A-2 hereto, with such applicable legends as are provided in Exhibit A-1 or Exhibit A-2 hereto, as applicable, except as otherwise permitted herein (the “Initial Rule 144A Global Notes” and together with any other Note evidencing the debt, or any portion of the debt, evidenced by such Initial Rule 144A Global Notes, the “Rule 144A Global Notes”). The aggregate principal amount of the Rule 144A Global Notes of any series may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Rule 144A Global Note of the same series), in connection with a corresponding decrease or increase in the aggregate principal amount of the Regulation S Global Notes of the same series or in consequence of the issue of Definitive Notes of the same series or additional Rule 144A Global Notes of the same series, as hereinafter provided.

 

SECTION 2.2         Execution and Authentication. Two Officers shall sign, or one Officer and one member of the Board of Directors of the Issuer shall sign, or two members of the Board of Directors of the Issuer shall sign, or one Officer shall sign and one Officer, a Secretary or an Assistant Secretary (each of whom shall, in each case, have been duly authorized by all requisite corporate actions) shall attest to, each Note for the Issuer by manual or facsimile signature.

 

If an Officer or member of the Board of Directors of the Issuer whose signature is on a Note was an Officer or member of such Board of Directors at the time of such execution but no longer holds that office or position at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

 

A Note shall not be valid until an authorized signatory of the Trustee or Deutsche Bank Luxembourg S.A. as the appointed Authenticating Agent manually signs the certificate of authentication on the Note and the entity appointed as Common Safekeeper by Euroclear and Clearstream effectuates the Note. The signatures shall be conclusive evidence that such Note has been authenticated under this Indenture. The Trustee shall deliver the authenticated Notes to the relevant nominee of the Common Safekeeper. The Common Safekeeper shall effectuate the Notes in accordance with the Issuer’s effectuation authorization instructions.

 

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Except as otherwise provided herein, the aggregate principal amount of Notes which may be outstanding at any time under this Indenture is not limited in amount. The Trustee shall, upon receipt of an Issuer Order in the form of an Officers’ Certificate, authenticate (i) Original Notes for original issue on the Closing Date in an aggregate principal amount of €500.0 million in respect of the 2029 Notes and €500.0 million in respect of the 2033 Notes and (ii) Additional Notes of any series from time to time for issuance after the Closing Date to the extent permitted hereunder. Additional 2029 Notes will be treated as the same series of Notes as the Original 2029 Notes and Additional 2033 Notes will be treated as the same series of Notes as the Original 2033 Notes for all purposes under this Indenture, including for purposes of waivers, amendments, redemptions and offers to purchase. Such Issuer Order shall specify the aggregate principal amount of Notes to be authenticated, the series and type of Notes, the date on which the Notes are to be authenticated, the issue price and the date from which interest on such Notes shall accrue, whether the Notes are to be Original Notes or Additional Notes (including in respect of which series), whether the Notes are to be issued as Definitive Notes or Global Notes (including in respect of which series) and whether or not the Notes shall bear the Private Placement Legend, or such other information as the Trustee may reasonably request. Upon receipt of an Issuer Order in the form of an Officers’ Certificate, the Trustee shall authenticate Notes in substitution of Notes of the same series originally issued to reflect any name change of the Issuer. In authenticating the Notes and accepting the responsibilities under this Indenture in relation to the Notes, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.

 

The Trustee may appoint an authenticating agent (“Authenticating Agent”) reasonably acceptable to the Issuer to authenticate Notes. Unless otherwise provided in the 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 Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer. The Trustee initially appoints the Registrar as Authenticating Agent of the Notes and the Issuer hereby confirms that such appointment is acceptable to it. The Notes shall be issuable only in denominations of €100,000 and any integral multiple of €1,000 in excess thereof.

 

SECTION 2.3         Registrar and Paying Agent. The Issuer shall maintain an office or agency where (a) Definitive Notes may be presented or surrendered for registration of transfer or for exchange (such office or agency, the “Registrar”), (b) Global Notes (and Definitive Notes, if issued) may be presented or surrendered for payment (“Paying Agent”) and (c) notices and demands in respect of such Global Notes (and Definitive Notes, if issued) and this Indenture may be served. In the event that Definitive Notes are issued, the Issuer shall ensure that at least one Person located in London, England and one Person located in Dublin, Ireland (if and for so long as the Notes of any series are admitted to the Global Exchange Market of the Irish Stock Exchange plc trading as Euronext Dublin (“Euronext Dublin”) and the rules of Euronext Dublin so require), in each case reasonably acceptable to the Trustee, is maintained as a Paying Agent and Registrar where (i) in the case of a Registrar, Definitive Notes may be presented or surrendered for registration of transfer or for exchange and notices and demands in respect of such Definitive Notes and this Indenture may be served and (ii) in the case of a Paying Agent, Definitive Notes may be presented or surrendered for payment. The Registrar shall keep a register of the Definitive Notes and of their transfer and exchange. Notices and demands in respect of Global Notes shall be made by the Issuer in accordance with Section 11.1. The Issuer, upon written notice to the Trustee, may have one or more co-Registrars and one or more additional Paying Agents reasonably

 

acceptable to the Trustee. The term “Registrar” includes any co-Registrar and the term “Paying Agent” includes any additional Paying Agent.

 

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The Issuer initially appoints Deutsche Bank AG, London Branch, as Paying Agent and Deutsche Bank Luxembourg S.A. as transfer agent (the “Transfer Agent”) and Registrar, until such time as any such entity has resigned or a successor has been appointed. In the event that a Paying Agent, Registrar or Transfer Agent is replaced, the Issuer will (so long as the Notes are Global Notes) provide written notice thereof to the Trustee in accordance with Section 11.1. The Issuer may change any Paying Agent, Registrar or Transfer Agent for any series of Notes without prior notice to the Holders. SKA or any of its Subsidiaries may act as Paying Agent or Registrar in respect of any series of Notes. If and for so long as any series of Notes is admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice of the change in Paying Agent, Registrar or Transfer Agent for such series to the Companies Announcement Office of Euronext Dublin.

 

The rights, duties and obligations of the Trustee and the Agents are several and not joint.

 

Payment of principal will be made upon the surrender of Definitive Notes following maturity thereof at the office of the Paying Agent. In the case of a transfer of a Definitive Note in part, upon surrender of the Definitive Note to be transferred, a Definitive Note of the same series shall be issued to the transferee in respect of the principal amount transferred and a Definitive Note of the same series shall be issued to the transferor in respect of the balance of the principal amount of the transferred Definitive Note at the office of any transfer agent. In all circumstances, the Issuer shall ensure that the Paying Agent shall be located outside Ireland.

 

For the avoidance of doubt, upon the issuance of Definitive Notes, Holders will be able to receive principal and interest on the Notes and will be able to transfer Definitive Notes at the office of such paying and transfer agent, subject to the right of the Issuer to mail payments in accordance with the terms of this Indenture.

 

Claims against the Issuer for payment of principal, interest and Additional Amounts, if any, on the Notes will become void unless presentment for payment is made (where so required herein) within, in the case of principal and Additional Amounts, if any, a period of ten years or, in the case of interest, a period of five years, in each case from the applicable original payment date therefor.

 

SECTION 2.4         Paying Agent To Hold Money. The Issuer shall require each Paying Agent other than the Trustee and the initial Paying Agent to agree in writing that each Paying Agent shall hold for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, Additional Amounts, if any, premium, if any, or interest on, the Notes, and shall notify the Trustee of any Default by the Issuer in making any such payment. The Issuer at any time may require a Paying Agent to distribute all money held by it to the Trustee and account for any money disbursed and the Trustee may at any time during the continuance of any payment Default, upon written request to a Paying Agent, require such Paying Agent to distribute all money held by it to the Trustee and to account for any money distributed. Upon distribution to the Trustee of all money that shall have been delivered by the Issuer to the Paying Agent, the Paying Agent shall have no further liability for such money.

 

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SECTION 2.5         List of Holders. In the event that Definitive Notes are issued, the Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of the relevant Holders of Notes. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee before each Record Date and at such other times as the Trustee may request in writing a list as of such date and in such form as the Trustee may reasonably require of the names and addresses of the relevant Holders of Notes, which list may be conclusively relied upon by the Trustee.

 

SECTION 2.6         Book-Entry Provisions for Global Notes. (a) The Global Notes initially shall (i) be registered in the name of the Common Safekeeper or its nominee for the accounts of Euroclear or Clearstream, (ii) deposited on behalf of the purchasers of the Notes with the Common Safekeeper or its nominee and (iii) bear legends as set forth in Section 2.7(g).

 

(b)            Notwithstanding any other provisions of this Indenture, Global Notes may not be transferred except as a whole by the Common Safekeeper to a nominee of the Common Safekeeper or by a nominee of the Common Safekeeper to the Common Safekeeper or another nominee of the Common Safekeeper or, in each case, to another successor of the Common Safekeeper or a nominee of such successor. Interests of beneficial owners in the Global Notes may be transferred or exchanged for Definitive Notes of the same series in accordance with the rules and procedures of the relevant Clearing Agency and the provisions of this Section 2.6, subject to the occurrence of the limited circumstances described in the following sentence. All Global Notes shall be exchanged by the Issuer (with authentication by the Trustee upon receipt of an Issuer Order) for one or more Definitive Notes of the same series, if (a) any Clearing Agency notifies the Issuer at any time that it is unwilling or unable to continue to act as a clearing agency and a successor depositary is not appointed within 120 days of such notification, (b) any Clearing Agency so requests following an Event of Default hereunder or (c) in whole (but not in part) at any time if the Issuer in its sole discretion determines and notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes of such series. If an Event of Default occurs and is continuing, the Issuer shall, at the written request delivered through the Common Safekeeper of the Holder thereof or of the holder of an interest therein, exchange all or part of a Global Note for one or more Definitive Notes of the same series (with authentication by the Trustee upon receipt of an Issuer Order); provided, however, that the principal amount at maturity of such Definitive Notes and such Global Note after such exchange shall be €100,000 or integral multiples of €1,000 in excess thereof. Whenever all of a Global Note is exchanged for one or more Definitive Notes, it shall be surrendered by the Holder thereof to the Registrar for cancellation. Whenever a part of a Global Note is exchanged for one or more Definitive Notes, such Global Note shall be surrendered by the Holder thereof to the Registrar who shall cause an adjustment to be made to Schedule A of such Global Note such that the principal amount of such Global Note will be equal to the portion of such Global Note not exchanged and shall thereafter return such Global Note to such Holder. A Global Note may not be exchanged for a Definitive Note other than as provided in this Section 2.6(b). Every Note authenticated and delivered in exchange for or in lieu of a Global Note, or any portion thereof, pursuant to Section 2.8, 2.11 or 3.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Note of the same series.

 

(c)            In connection with the transfer of Global Notes as an entirety to beneficial owners pursuant to paragraph (b) of this Section 2.6, the Global Notes shall be deemed to be surrendered to the Registrar for cancellation, and the Issuer shall execute, and the Trustee shall upon written instructions from the Issuer authenticate and make available for delivery, to each beneficial owner in exchange for its beneficial interest in the Global Notes, an equal aggregate principal amount of Definitive Notes of the same series of authorized denominations.

 

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(d)            Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.6(b) shall, except as otherwise provided by Section 2.7, bear the Private Placement Legend.

 

(e)            Prior to the expiration of the 40-day distribution compliance period as defined in Regulations S, ownership of Book-Entry Interests will be limited to non-U.S. persons and other persons to whom an offer or sale of the Notes is made pursuant to an exemption from registration under the Securities Act.

 

SECTION 2.7         Registration of Transfer and Exchange. (a) Notwithstanding any provision to the contrary herein, so long as a Note remains outstanding, transfers of beneficial interests in Global Notes or transfers of Definitive Notes, in whole or in part, shall be made only in accordance with this Section 2.7.

 

(b)            If a holder of a beneficial interest in a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in a Regulation S Global Note of the same series, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Regulation S Global Note, such holder may, subject to the rules and procedures of the relevant Clearing Agency, to the extent applicable, and subject to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Regulation S Global Note. Upon (1) written instructions given in accordance with the procedures of the relevant Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Rule 144A Global Note, directing the credit of a beneficial interest in the Regulation S Global Note of the same series in an amount equal to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (2) a written order given in accordance with the procedures of the relevant Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account and (3) receipt by the Registrar of a certificate in the form of Exhibit C-1 or C-2, as applicable, given by the holder of such beneficial interest stating that the exchange or transfer of such interest has been made pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S or Rule 144 under the Securities Act, the Registrar shall promptly deliver appropriate instructions to the Clearing Agency to reduce or reflect on its records a reduction of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred from the relevant participant, and the Registrar shall promptly deliver appropriate instructions to the relevant Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Regulation S Global Note equal to the reduction in the principal amount of such Rule 144A Global Note.

 

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(c)            If a holder of a beneficial interest in a Regulation S Global Note wishes at any time to exchange its interest in such Regulation S Global Note for an interest in a Rule 144A Global Note of the same series, or to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Rule 144A Global Note, such holder may, subject to the rules and procedures of the relevant Clearing Agency, to the extent applicable, and to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Rule 144A Global Note. Upon (1) written instructions given in accordance with the procedures of the relevant Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Regulation S Global Note directing the credit of a beneficial interest in the Rule 144A Global Note in an amount equal to the beneficial interest in the Regulation S Global Note of the same series to be exchanged or transferred, and (2) a written order given in accordance with the procedures of the Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account, the Registrar shall promptly deliver appropriate instructions to the relevant Clearing Agency to reduce or reflect on its records a reduction of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be exchanged or transferred, and the Registrar shall promptly deliver appropriate instructions to the relevant Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Rule 144A Global Note equal to the reduction in the principal amount of such Regulation S Global Note.

 

(d)           Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in another Global Note of the same series will, upon transfer, cease to be an interest in such Global Note and become an interest in such other Global Note and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.

 

(e)            In the event that a Global Note is exchanged for Definitive Notes in registered form without interest coupons, pursuant to Section 2.6(b), or a Definitive Note in registered form without interest coupons is exchanged for another such Definitive Note in registered form without interest coupons, or a Definitive Note is exchanged for a beneficial interest in a Global Note, such Notes may be exchanged or transferred for one another only in accordance with (i) such procedures as are substantially consistent with the provisions of Sections 2.7(b) and (c) above (including the certification requirements intended to ensure that such exchanges or transfers comply with Rule 144, Rule 144A or Regulation S, as the case may be) and as may be from time to time adopted by the Issuer and the Trustee.

 

(f)            [Intentionally omitted]

 

(g)            Each Global Note and each Definitive Note issued hereunder shall, upon issuance, bear the legend set forth herein and such legend shall not be removed from such Note except as provided in the next sentence. The legend required for a Note may be removed from a Note if there is delivered to the Issuer and the Trustee such satisfactory evidence, which may include an opinion of independent counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer and the Trustee, that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee, upon receipt of an Issuer Order, shall authenticate and deliver in exchange for such Note another Note or Notes of the same series having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Note has been removed from a Note as provided above, no other Note issued in exchange for all or any part of such Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Note is a “restricted security” within the meaning of Rule 144 and instructs the Trustee to cause a legend to appear thereon.

 

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The Notes shall bear the following legend (the “Private Placement Legend”) on the face thereof:

 

[IN THE CASE OF RULE 144A NOTES]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

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BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

[IN THE CASE OF REGULATION S NOTES]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

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THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

(h)            By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.

 

None of the Trustee, the Registrar, the Paying Agent or the Transfer Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.6 or this Section 2.7. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

 

(i)            Definitive Notes shall be transferable only upon the surrender of a Definitive Note for registration of transfer. When a Definitive Note is presented to the Registrar or a co-registrar with a request to register a transfer, the Registrar shall register the transfer as requested if its requirements for such transfers are met. When Definitive Notes are presented to the Registrar or a co-registrar with a request to exchange them for an equal principal amount of Definitive Notes of the same series of other denominations, the Registrar shall make the exchange as requested if the same requirements are met. To permit registration of transfers and exchanges, the Issuer shall execute and, upon receipt of an Issuer Order, the Trustee shall authenticate Definitive Notes at the Registrar’s or co-registrar’s request.

 

(j)            The Issuer shall not be required to make, and the Registrar need not register transfers or exchanges of, Definitive Notes (i) that have been selected for redemption (except, in the case of Definitive Notes to be redeemed in part, the portion thereof not to be redeemed) or (ii) for a period of 15 days prior to a selection of Definitive Notes to be redeemed.

 

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

 

(l)            No service charge will be made for any registration or transfer or exchange of the Notes, but the Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by this Section 2.7.

 

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

 

(n)           Provided such Notes have been offered pursuant to Rule 144A, Holders of Notes (or holders of interests therein) and prospective purchasers designated by such Holders (or holders of interests therein) will have the right to obtain from the Issuer upon request by such Holders (or holders of interests therein) or prospective purchasers, during any period in which the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, or is exempt from reporting pursuant to 12g3-2(b) under the Exchange Act, the information required by paragraph d(4)(i) of Rule 144A in connection with any transfer or proposed transfer of such Notes.

 

SECTION 2.8         Replacement Notes. If a mutilated Definitive Note is surrendered to the Registrar, if a mutilated Global Note is surrendered to the Issuer or if the Holder of a Note claims that such Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and, upon receipt of an Issuer Order, the Trustee shall authenticate a replacement Note of the same series in such form as the Note being replaced if the requirements of the Trustee, the Registrar and the Issuer are met. If required by the Trustee, the Registrar and the Issuer, such Holder must provide an indemnity bond or other indemnity, sufficient in the judgment of the Issuer, the Registrar and the Trustee, to protect the Issuer, the Registrar, the Trustee and any Agent from any loss which any of them may suffer if a Note is replaced. The Issuer may charge such Holder for its reasonable, out-of-pocket expenses in replacing a Note, including reasonable fees and expenses of counsel. Every replacement Note is an additional obligation of the Issuer. The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost, stolen or taken Notes.

 

SECTION 2.9         Outstanding Notes. Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except those canceled by it, those delivered to it for cancellation, those reductions in the Global Note effected in accordance with the provisions hereof and those described in this Section as not outstanding. Subject to Section 2.10, a Note does not cease to be outstanding because the Issuer or any of its Affiliates holds the Note.

 

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If a Note is replaced pursuant to Section 2.8 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 2.8.

 

If the principal amount of any Note is considered paid under Section 4.1, it ceases to be outstanding and interest, and Additional Amounts, if any on it cease to accrue.

 

If, on a Redemption Date or the Maturity Date of any series of Notes, the Paying Agent holds cash in euros sufficient to pay all of the principal, interest and Additional Amounts, if any, due on such series of Notes payable on that date, then on and after that date, the Notes of such series cease to be outstanding and interest and Additional Amounts, if any, on the Notes of such series cease to accrue.

 

SECTION 2.10       Treasury Notes. In determining whether the Holders of the required principal amount of relevant Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or its Affiliates shall be disregarded, 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 Trust Officer of the Trustee actually knows are so owned shall be disregarded.

 

SECTION 2.11       Temporary Notes. Until permanent Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Definitive Notes of the same series upon receipt of an Issuer Order in the form of an Officers’ Certificate of the Issuer. Such Officers’ Certificate shall specify the amount of temporary Definitive Notes to be authenticated and the date on which the temporary Definitive Notes are to be authenticated. Temporary Definitive Notes shall be substantially in the form of permanent Definitive Notes of the same series but may have variations that the Issuer considers appropriate for temporary Definitive Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate upon receipt of an Issuer Order pursuant to Section 2.2 permanent Definitive Notes of the same series in exchange for temporary Definitive Notes. Holders of temporary Definitive Notes shall be entitled to all of the benefits of this Indenture.

 

SECTION 2.12       Cancellation. The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent, and no one else, shall cancel and, at the written direction of the Issuer, shall dispose of (subject to the record retention requirements of the Exchange Act) all Notes surrendered for transfer, exchange, payment or cancellation; provided, however, that the Trustee may, but shall not be required to, destroy such canceled Notes. Subject to Section 2.8, the Issuer may not issue new Notes to replace Notes that it has paid or delivered to the Trustee for cancellation. If the Issuer shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.12.

 

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SECTION 2.13       Defaulted Interest. If the Issuer defaults in a payment of interest on the Notes of any series, it shall pay the defaulted interest to the Holders thereof as of the relevant original Record Date; provided, however, if such default in payment of interest continues for 30 days, the Issuer shall (in the case of Definitive Notes) establish a subsequent special Record Date, which date shall be the fifteenth day next preceding the date fixed by the Issuer for the payment of defaulted interest. If no special Record Date is required to be established pursuant to the immediately preceding sentence, (i) in the case of Definitive Notes, Holders of record of the relevant series of Notes on the relevant original Record Date shall be entitled to such payment of defaulted interest and (ii) in the case of Global Notes, Holders of the Notes of such series on the Default Interest Payment Date (as defined in the next sentence) shall be entitled to such defaulted interest. The Issuer shall notify the Trustee and the Paying Agent in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment (a “Default Interest Payment Date”), and at the same time the Issuer shall deposit with the Trustee or the Paying Agent 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 or the Paying Agent 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 in this Section 2.13; provided, however, that in no event shall the Issuer deposit monies proposed to be paid in respect of defaulted interest later than 10:00 a.m. London time on the proposed Default Interest Payment Date with respect to defaulted interest to be paid on the Note. In the case of Definitive Notes, at least 15 days before the subsequent special Record Date, if applicable, the Issuer shall deliver to the relevant Holders in accordance with Section 11.1 a notice that states the subsequent special Record Date, the payment date and the amount of defaulted interest to be paid. In the case of Global Notes, at least 15 days before the Default Interest Payment Date, the Issuer shall deliver to the relevant Holders in accordance with Section 11.1 a notice that states the Default Interest Payment Date, the payment date and the amount of defaulted interest to be paid.

 

SECTION 2.14         ISINs and Common Codes. The Issuer in issuing the Notes may use ISINs or Common Codes, and if so, the Trustee shall use the ISINs and Common Codes in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of such numbers or codes printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Issuer shall promptly notify the Trustee in writing of any change in any ISIN or Common Code.

 

SECTION 2.15         Deposit of Moneys. With respect to each series of Notes, no later than 10:00 a.m. (London time) on each interest payment date and the Maturity Date, the Issuer shall have deposited with the Trustee or its designated Paying Agent (which shall be the initial Paying Agent unless otherwise notified to the Issuer by the Trustee) in immediately available funds money sufficient to make cash payments, if any, due on such interest payment date or Maturity Date, as the case may be, on all Notes of such series then outstanding. Such payments shall be made by the Issuer in a timely manner which permits a Paying Agent (including the initial Paying Agent) to remit payment to the Holders on such Interest Payment Date or Maturity Date, as the case may be.

 

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SECTION 2.16       Certain Matters Relating to Global Notes. (a) Members of or participants in a Clearing Agency (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Common Safekeeper or its nominee, or under the Global Note, and the Common Safekeeper or its nominee may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Common Safekeeper or its nominees, or impair, as between the Clearing Agency and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Note.

 

(b)            The holder of a beneficial interest in any Global Note may grant proxies and otherwise authorize any person, including the Clearing Agency and their Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes of the same series.

 

SECTION 2.17       Interest. Interest accrued on the Notes will be payable annually in arrears on September 22 of each year, commencing September 22, 2022, to Holders of record (i) in the case of Notes represented by a global security, at the close of business on the Business Day (for this purpose a day on which Clearstream and Euroclear are open for business) immediately preceding the interest payment date) and (ii) in all other cases on the immediately preceding September 8. Interest on Notes of each series will be calculated on the aggregate nominal amount of Notes of the relevant series outstanding. Rights of holders of beneficial interests in the Notes to receive such payments will be subject to the applicable procedures of Euroclear and Clearstream, as applicable.

 

Interest accrued on all Notes then outstanding will be payable in cash.

 

SECTION 2.18       New Safekeeping Structure. The Paying Agent undertakes to the Issuer that it will, in connection with the issue of the Notes, perform the duties which are stated to be performed by it in Exhibit E (New Safekeeping Structure Duties). Each Agent (other than the Paying Agent) agrees that if any information that is required by the Paying Agent to perform the duties set out in Exhibit E becomes known to it, it will promptly provide such information to the Paying Agent.

 

SECTION 2.19       Election of Common Safekeeper. The Issuer hereby authorizes and instructs the Paying Agent to elect Clearstream Banking as Common Safekeeper. The Issuer acknowledges that any such election is subject to the right of Euroclear and Clearstream Banking to jointly determine that the other shall act as Common Safekeeper and agrees that no liability shall attach to the Paying Agent in respect of any such election made by it.

 

SECTION 2.20       Authority to Authenticate and Effectuate. The Trustee is authorized by the Issuer to (i) authenticate or cause to be authenticated the Global Notes and the Definitive Notes (if any) and (ii) transmit such Global Notes electronically to the Common Safekeeper and to give effectuation instructions in respect of the Global Note following authentication thereof by the signature of any of its officers or any other person duly authorized for such purpose by the Trustee.

 

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ARTICLE III

 

REDEMPTION

 

SECTION 3.1         Optional Redemption. The Notes may be redeemed, as a whole or from time to time in part, upon the terms and at the applicable redemption prices set forth in the relevant Notes. Any redemption pursuant to this Section 3.1 shall be made pursuant to the provisions of this Article III. The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

SECTION 3.2         Notices to Trustee. If the Issuer elects to redeem the Notes of any series pursuant to Paragraphs 7 or 8 of the Notes of such series, it shall notify the Trustee and the Paying Agent in writing of the Redemption Date and the principal amount of Notes to be redeemed at least 10 days but not more than 60 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee). The Issuer shall give notice of redemption as required under the relevant paragraph of the relevant series of Notes pursuant to which such Notes are being redeemed.

 

SECTION 3.3         Selection of Notes to Be Redeemed. If less than all of any series of Notes is to be redeemed pursuant to their terms or the terms of this Indenture at any time, selection of such Notes for redemption will be made by the Trustee or the relevant Registrar in compliance with the requirements of the principal securities exchange, if any, on which the applicable series of Notes is listed, and in compliance with the requirements of the applicable Clearing Agencies, or if the applicable series of Notes is not so listed or such exchange prescribes no method of selection and the applicable series of Notes is not held through a Clearing Agency or such Clearing Agency prescribes no method of selection, on a pro rata basis; provided, however, that no Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part. In the event of partial redemption, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 10 nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding Notes of the applicable series not previously called for redemption.

 

SECTION 3.4         Notice of Redemption. At least 10 days but not more than 60 days before a Redemption Date, the Issuer shall deliver to Holders in accordance with Section 11.1, a notice of redemption. Any redemption and notice may, at the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent, and such notice may state that, in the Issuer’s discretion, the redemption date may be delayed without any additional notice until such time as any or all such conditions shall have been satisfied. At the Issuer’s request made at least 10 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee), the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided, however, that the Issuer shall deliver to the Trustee an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the following items. Each notice for redemption shall identify the Notes to be redeemed and shall state:

 

(a)            the Redemption Date;

 

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(b)            the Redemption Prices, including the amount of accrued and unpaid interest, if any, and Additional Amounts, if any, to be paid (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, due on the relevant interest payment date);

 

(c)            the Record Date;

 

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

 

(e)            that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price, including accrued and unpaid interest, if any, and Additional Amounts, if any;

 

(f)             that, unless the Issuer defaults in making the redemption payment, interest and Additional Amounts, if any, on Notes called for redemption cease to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Notes redeemed;

 

(g)            (i) if any Global Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, interest and Additional Amounts, if any, shall cease to accrue on the portion called for redemption, and upon surrender of such Global Note, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unredeemed portion, will be returned and (ii) if any Definitive 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 Definitive Note, a new Definitive Note or Notes of the same series in aggregate principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof, upon cancellation of the original Note;

 

(h)            if fewer than all the Notes of any series are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes of such series to be outstanding after such partial redemption;

 

(i)             the paragraph of the relevant series of Notes pursuant to which such Notes are to be redeemed;

 

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

 

(k)            whether the redemption is conditional on any events and, if so, a detailed explanation of such conditions.

 

SECTION 3.5         Effect of Notice of Redemption. Once notice of redemption is given in accordance with Section 3.4, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price, including accrued and unpaid interest, if any, and Additional Amounts, if any. Upon surrender to the Trustee or Paying Agent, such Notes called for redemption shall be paid at the Redemption Price (which shall include accrued and unpaid interest thereon, if any, and Additional Amounts, if any, to the Redemption Date), but (in the case of Definitive Notes) installments of interest, the maturity of which is on or prior to the Redemption Date, shall be payable to Holders of record at the close of business on the relevant Record Dates.

 

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SECTION 3.6         Deposit of Redemption Price. No later than 10:00 a.m. (London time) on the Redemption Date, the Issuer shall deposit with the Trustee or its designated Paying Agent (which shall be the initial Paying Agent unless otherwise notified to the Issuer by the Trustee) an amount of cash in euros sufficient to pay the Redemption Price, including accrued and unpaid interest, if any, and Additional Amounts, if any, of all Notes to be redeemed on that date. The Paying Agent shall promptly return to the Issuer any cash in euros so deposited which is not required for that purpose upon the written request of the Issuer.

 

If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the payment of such Redemption Price, including accrued and unpaid interest, if any, and Additional Amounts, if any, interest and Additional Amounts, if any, on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Notes are presented for payment. With respect to Definitive Notes, if a Definitive Note is redeemed on or after an interest Record Date but on or prior to the related interest payment date, then any accrued and unpaid interest and Additional Amounts, 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 Issuer to comply with the preceding paragraph, interest and Additional Amounts, if any, shall be paid on the unpaid principal, from the Redemption Date until such principal is paid at the rate provided in the applicable Note.

 

SECTION 3.7         Notes Redeemed in Part. Upon surrender and cancellation of a Definitive Note that is redeemed in part, the Issuer shall execute and upon receipt of an Issuer Order the Trustee shall authenticate for the Holder (at the Issuer’s expense) a new Definitive Note of the same series equal in principal amount to the unredeemed portion of the Definitive Note surrendered and canceled; provided, however, that each such Definitive Note shall be in a principal amount at maturity of €100,000 or an integral multiple of €1,000 in excess thereof. Upon surrender of a Global Note that is redeemed in part, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the Global Note surrendered; provided, however, that each such Global Note shall be in a principal amount at maturity of €100,000 or an integral multiple of €1,000 in excess thereof.

 

ARTICLE IV

 

COVENANTS

 

SECTION 4.1         Payment of Notes. The Issuer shall pay the principal, premium, if any, interest and Additional Amounts, if any, on the Notes in the manner provided in such Notes and this Indenture. An installment of principal of or interest on the Notes shall be considered paid on the date it is due if the Trustee or the Paying Agent holds prior to 10:00 a.m. London time on that date money deposited by the Issuer in immediately available funds and designated for, and sufficient to pay the installment in full and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture.

 

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SECTION 4.2         Maintenance of Office or Agency. The Issuer shall maintain the office or agency (which office may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) required under Section 2.3 where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 11.1. The Issuer and each Guarantor hereby initially designates the office of Smurfit Kappa Packaging LLC, located at 1301 International Parkway, Suite 550, Sunrise, Florida 33323, as its office or agency outside Ireland as required under Section 2.3 hereof.

 

SECTION 4.3         [Intentionally omitted]

 

SECTION 4.4         [Intentionally omitted]

 

SECTION 4.5         [Intentionally omitted]

 

SECTION 4.6         [Intentionally omitted]

 

SECTION 4.7         [Intentionally omitted]

 

SECTION 4.8         Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries. (a) SKA will not cause or permit any of its Subsidiaries that is not a Guarantor or the Issuer, directly or indirectly, to guarantee, assume or in any other manner become liable for the payment of any Indebtedness under the Existing Senior Notes or any other Public Indebtedness, unless, subject to the limitations set forth in this Indenture, such Subsidiary executes and delivers a supplemental indenture to this Indenture providing for a Guarantee of payment of the Notes by such Subsidiary on the same terms as the guarantee of such Indebtedness within 10 Business Days thereof; provided that if such Indebtedness is by its terms expressly subordinated to the Notes or any Guarantee, any such guarantee, assumption or other liability of such Subsidiary with respect to such Indebtedness shall be subordinated to such Subsidiary’s Guarantee of the Notes at least to the same extent as such Indebtedness is subordinated to the Notes or any other Guarantee.

 

(b)           The obligations in paragraph (a) of this Section 4.8 will not be operative to the extent (1) the Notes have an Investment Grade rating from the Rating Agencies and (2) none of the Existing Senior Notes benefit from a guarantee from such Subsidiary. The obligations in paragraph (a) of this Section 4.8 will be permanently terminated and no longer in effect as of the first date on which none of the Existing Senior Notes are outstanding.

 

To the extent any Subsidiary of SKA is required to provide a Guarantee, such Guarantee will be limited as necessary to recognize certain defenses generally available to guarantors (including those that relate to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally) or other considerations under applicable law.

 

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SECTION 4.9         [Intentionally omitted]

 

SECTION 4.10         Negative Pledge. SKA will not, and will not permit any of its Subsidiaries to, secure any Indebtedness for money borrowed by placing a Lien (other than a Permitted Lien) on any Principal Property now or hereafter owned or leased by SKA or any Subsidiary of SKA or on any shares of stock of any Subsidiary of SKA (a “Restricted Lien”) without equally and ratably securing (or securing on a senior basis, in the case of a Lien securing Indebtedness that is by its terms expressly subordinated to the Notes or any Guarantee) all of the Notes, unless after giving effect thereto the aggregate principal amount of all such Indebtedness secured by a Restricted Lien then outstanding would not exceed an amount equal to 15% of Consolidated Net Tangible Assets. The restrictions set forth in the preceding sentence will not apply to any Permitted Lien, and all Indebtedness secured by a Permitted Lien shall be excluded in computing the amount of Indebtedness secured by a Lien outstanding for purposes of this covenant.

 

Any Lien created for the benefit of the holders of the Notes pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien relating to such Indebtedness that gave rise to the obligation to so secure the Notes.

 

SECTION 4.11       [Intentionally omitted]

 

SECTION 4.12       [Intentionally omitted]

 

SECTION 4.13       [Intentionally omitted]

 

SECTION 4.14       [Intentionally omitted]

 

SECTION 4.15       [Intentionally omitted]

 

SECTION 4.16       [Intentionally omitted]

 

SECTION 4.17       [Intentionally omitted]

 

SECTION 4.18       [Intentionally omitted]

 

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SECTION 4.19       Change of Control Repurchase Event. (a) If a Change of Control Repurchase Event occurs with respect to any series of Notes, each Holder of the Notes of the applicable series will have the right to require the Issuer to repurchase all or any part (equal to €100,000 and integral multiples of €1,000 in excess thereof in the case of Notes that have denominations larger than €100,000) of that Holder’s Notes of each applicable series pursuant to an offer (the “Change of Control Offer”) on the terms set forth in this Indenture. In the Change of Control Offer, the Issuer will offer a payment (the “Change of Control Payment”) in cash equal to 100% of the aggregate principal amount of each of the Notes repurchased plus accrued and unpaid interest and Additional Amounts, if any, thereon, to, but excluding, the date of purchase. Within 60 days following any Change of Control Repurchase Event, the Issuer will mail a notice to each Holder and the Trustee describing the transaction or transactions that constitute the Change of Control Repurchase Event and offering to repurchase Notes of each applicable series on a date (the “Change of Control Payment Date”) specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by this Indenture and described in such notice. The Issuer will comply with the requirements of Section 14(e) of the Exchange Act to the extent applicable and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.19 by virtue of such conflict.

 

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

 

(1)            accept for payment all Notes of the applicable series or portions thereof properly tendered pursuant to the Change of Control Offer;

 

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

 

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

 

(c)            The Paying Agent will promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes and the Trustee or the relevant Registrar will, upon receipt of an Issuer Order, promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of €100,000 or an integral multiple of €1,000 in excess thereof.

 

(d)            In the case of Definitive Notes, if the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amounts, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest or Additional Amounts will be payable to Holders who tender pursuant to the Change of Control Offer; in the case of Global Notes, the Issuer will pay accrued and unpaid interest to the Change of Control Payment Date to the Holder on such date.

 

(e)            The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date; provided, that if and for so long as the applicable series of Notes is listed on Euronext Dublin and the rules of Euronext Dublin so require, the Issuer will give notice with respect to the results of the Change of Control Offer to the Companies Announcement Office of Euronext Dublin.

 

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(f)            This Section 4.19 will be applicable regardless of whether any other provisions of this Indenture are applicable.

 

(g)            The Issuer will not be required to make a Change of Control Offer with respect to a series of Notes following a Change of Control Repurchase Event if (i) an Affiliate of the Issuer or a third party makes the Change of Control Offer for such series of Notes in the manner, at the times and otherwise in compliance with this Section 4.19 applicable to a Change of Control Offer made by the Issuer and purchases all Notes of the applicable series validly tendered and not withdrawn under such Change of Control Offer or (ii) a notice of redemption for all of the outstanding Notes of such series has been given pursuant to this Indenture under Section 3.4 unless and until there is a default in the payment of the applicable redemption price, plus accrued and unpaid interest to the proposed redemption date. Notwithstanding the foregoing, a Change of Control Offer may be made in advance of a Change of Control Repurchase Event, conditional upon the Change of Control, so long as a definitive agreement has been executed that contains terms and provisions that would otherwise result in a Change of Control upon completion of the transactions contemplated thereby.

 

SECTION 4.20       Additional Amounts. (a) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on the Notes or the Guarantees is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Paying Agent that such payment of principal, premium, if any, or interest on the Notes (whether or not in the form of Definitive Notes) or any Guarantee shall be made to the Holders with withholding or deduction (but only in case such payment shall be made with such withholding or deduction) for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of Taxes is then required by law.

 

(b)            If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes or the Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the relevant series of Notes (the “Additional Amounts”).

 

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(c)            The Payor and each Guarantor or successor Guarantor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon written request, the Payor and each Guarantor will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per €1,000 principal amount of the Notes. Copies of such documentation will be available for inspection during ordinary business hours at the office of the Trustee by the Holders of the Notes upon request.

 

(d)            Wherever in this Indenture or the Notes there are mentioned, in any context, (i) the payment of principal, (ii) purchase prices in connection with a purchase of Notes, (iii) interest or (iv) any other amount payable on or with respect to any of the Notes or the Guarantees, such reference shall be deemed to include payment of Additional Amounts as described in this Indenture and the Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

(e)            The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without gross negligence, willful default or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.20.

 

(f)            Obligations under this Section 4.20 will survive any termination, defeasance or discharge of this Indenture.

 

SECTION 4.21. Payment of Non-Income Taxes and Similar Charges. The Payor and each Guarantor or successor Guarantor will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of any Notes or any other document or instrument referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside a Relevant Taxing Jurisdiction, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes. Obligations under this Section 4.21 will survive any termination, defeasance or discharge of this Indenture.

 

SECTION 4.21       [Intentionally omitted]

 

SECTION 4.22       [Intentionally omitted]

 

SECTION 4.23       [Intentionally omitted]

 

SECTION 4.24       [Intentionally omitted]

 

SECTION 4.25       [Intentionally omitted]

 

SECTION 4.26       [Intentionally omitted]

 

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ARTICLE V

 

SUCCESSOR CORPORATION

 

SECTION 5.1. Consolidation, Merger or Sale of Assets. The Issuer may not, directly or indirectly: (a) consolidate or merge with or into another Person (whether or not the Issuer is the surviving corporation); or (b) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:

 

(1)            either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, conveyance, lease or other disposition shall have been made (the “Successor Issuer”) is a company organized or existing under the laws of the United States, any state thereof or the District of Columbia or any member of the European Union on the Issue Date;

 

(2)            the Successor Issuer (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and the Indenture pursuant to agreements reasonably satisfactory to the Trustee;

 

(3)            immediately after such transaction, no Default or Event of Default exists; and

 

(4)            each Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations in respect of the Indenture and the Notes (unless such Guarantee shall be released in connection with the transaction and otherwise in compliance with the Indenture).

 

SKA may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not SKA is the surviving corporation); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of SKA and its Subsidiaries taken as a whole, in one or more related transactions, to another Person (other than the Issuer or another Guarantor) unless (a) SKA (or the Person formed by or surviving any such consolidation or merger (if other than SKA) or to which such sale, assignment, transfer, conveyance, lease or other disposition shall have been made (the “SKA Successor”)) shall have by supplemental indenture confirmed its Guarantee shall continue to apply to the Issuer’s obligations in respect of the Indenture and the Notes or, in the case of a SKA Successor, expressly assumed all the obligations of SKA under its Guarantee under the Indenture and the Notes; (b)(i) either SKA is the surviving company; or (ii) the SKA Successor is a company organized or existing under the laws of the United States, any state thereof or the District of Columbia, or any member of the European

 

Union on the Issue Date; and (c) immediately after such transaction, no Default or Event of Default exists.

 

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For purposes of this covenant, the sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of a Person, which properties and assets, if held by such Person instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Person on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Person.

 

SECTION 5.2         Successor Corporation Substituted. If any such consolidation, merger, sale, assignment, transfer, conveyance or disposition is consummated without causing an Event of Default, then the Successor Issuer or SKA Successor, as applicable, will succeed to, and be substituted for, and may exercise every right and power of, the Issuer, in the case of a Successor Issuer or SKA, in the case of a SKA Successor, under this Indenture with the same effect as if such Successor Issuer had been named as the Issuer herein or as if such SKA Successor had been named as SKA herein, as applicable, and thereafter (except in the case of a sale, assignment, transfer, lease, conveyance or other disposition) the predecessor corporation will be relieved of all further obligations and covenants under this Indenture and the Notes.

 

ARTICLE VI

 

DEFAULT AND REMEDIES

 

SECTION 6.1         Events of Default. Whenever used herein with respect to a series of Notes issued under this Indenture, “Event of Default” means any one of the following events which shall have occurred and be continuing:

 

(1)            a default for 30 days in the payment when due of interest on, or Additional Amounts with respect to, such series of Notes;

 

(2)            a default in payment when due of the principal of, or premium, if any, on such series of Notes;

 

(3)            a failure by SKA or any of its Subsidiaries for 90 days after notice by the Trustee or by the Holders of at least 25% in principal amount of such series of Notes to comply with any of the other agreements in this Indenture;

 

(4)            a default under any mortgage, indenture or instrument under which there is issued and outstanding any Indebtedness for money borrowed by SKA or any of its Subsidiaries (or the payment of which is guaranteed by SKA or any of its Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the date of this Indenture, if that default:

 

(a)            is caused by a failure to pay principal at the final stated maturity of such Indebtedness (after giving effect to any applicable grace period provided in the Indebtedness) (a “Payment Default”); or

 

(b)            results in the acceleration of such Indebtedness prior to its express maturity;

 

and in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates €150.0 million or more;

 

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(5)            (A) a court having jurisdiction in the premises having entered a decree or order for (i) relief in respect of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) appointment of a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary or (iii) the winding up or liquidation of the affairs of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary and, in each case, such decree or order remaining unstayed and in effect for a period of 30 consecutive days; or (B) the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary (i) having commenced a voluntary case (including taking any action for the purpose of winding up) under any applicable bankruptcy, insolvency, examination, court protection or other similar law now or hereafter in effect, or consented to the entry of an order for relief in an involuntary case under any such law, (ii) having consented to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer, SKA or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of SKA and its Subsidiaries), would constitute a Significant Subsidiary or (iii) having effected any general assignment for the benefit of creditors.

 

SECTION 6.2         Acceleration. In the case of an Event of Default arising under Section 6.1(5) hereof, the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all outstanding Notes shall become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee (upon request of Holders of at least 25% in principal amount of Notes of the applicable series subject to the Event of Default then outstanding) shall, by notice in writing to the Issuer, or the Holders of at least 25% in principal amount of the then outstanding Notes of the applicable series may, by notice in writing to the Issuer and the Trustee, declare all Notes of such series to be due and payable, and any such notice shall specify the respective Event of Default and that such notice is a “notice of acceleration”, and the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all outstanding Notes of such series shall become immediately due and payable. In the event of any Event of Default specified in Section 6.1(4), such Event of Default and all consequences thereof (including, without limitation, any acceleration or resulting payment default) shall be annulled, waived and rescinded automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose, (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged, (y) the creditors on such Indebtedness have rescinded or waived the acceleration, notice or action, as the case may be, giving rise to such Event of Default or (z) if the default that is the basis for such Event of Default has been cured.

 

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SECTION 6.3         Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or, premium, if any, interest or Additional Amounts, if any, on the Notes of the applicable series subject to the Event of Default or to enforce the performance of any provision of such Notes or this Indenture.

 

SECTION 6.4         The Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto.

 

SECTION 6.5         Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Notes is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent or subsequent assertion or employment of any other appropriate right or remedy.

 

SECTION 6.6         Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Notes.

 

SECTION 6.7         Waiver of Past Defaults. Subject to Section 9.2, at any time after a declaration of acceleration with respect to any series of Notes as described in Section 6.2, the Holders of at least a majority in aggregate principal amount of the outstanding Notes of such series by written notice to the Trustee, may, on behalf of the Holders of all the Notes of such series, waive any existing Default or Event of Default (except with respect to a continuing Default or Event of Default in the payment of principal, premium, interest, Additional Amounts, if any, and other monetary obligations on such Notes) and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, interest, Additional Amounts, if any, and other monetary obligations on such Notes that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. Such waiver shall not excuse a continuing Default or Event of Default in the payment of interest, premium, if any, principal or Additional Amounts, if any, on such Notes held by a non-consenting Holder, or in respect of a covenant or a provision which cannot be amended or modified without the consent of at least 80% of Holders. The Issuer shall deliver to the Trustee an Officers’ Certificate stating that the requisite percentage of Holders has consented to such waiver and attaching copies of such consents. When a Default or Event of Default is waived with respect to any series of Notes, it is cured and ceases with respect to such series of Notes.

 

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SECTION 6.8         Control by Majority. Subject to Section 2.10, the Holders of not less than a majority in principal amount of the outstanding Notes of any series may, by written notice to the Trustee, direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it with respect to such series of Notes. Subject to Section 7.1, however, the Trustee may refuse to follow any direction that conflicts with any law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of another Holder of Notes of such series, or that would involve the Trustee in liability or expense; provided, however, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Prior to taking any action under this Indenture, the Trustee will be entitled to indemnification or security to its satisfaction against all losses, liabilities, costs and expenses incurred by it in taking or not taking such action.

 

SECTION 6.9         Limitation on Suits. Except to enforce the right to receive payment of principal, premium, if any, interest when due and Additional Amounts, if any, no Holder may pursue any remedy with respect to this Indenture or the Notes of any series, unless:

 

(1)            such Holder has previously given the Trustee notice that an Event of Default is continuing;

 

(2)            Holders of at least 25% in principal amount of the outstanding Notes of such series have requested the Trustee to pursue the remedy;

 

(3)            such Holders have offered the Trustee indemnity or security to its satisfaction, against any loss, liability or expense;

 

(4)            the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of such security or indemnity; and

 

(5)            the Holders of a majority in principal amount of the outstanding Notes of such series have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.

 

SECTION 6.10       Collection Suit by Trustee. If an Event of Default in payment of principal, premium, if any, interest or Additional Amounts, if any, specified in clause (1) or clause (2) of Section 6.1 occurs and is continuing with respect to a series of Notes, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or any other obligor on such series of Notes for the whole amount of principal and accrued interest remaining unpaid and Additional Amounts, if any, thereon and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6.

 

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SECTION 6.11       Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or its property or other obligor on the Notes, its creditors and its property and shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and any custodian in any such judicial proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6 hereof 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 which the Holders of the Notes of the applicable series may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

 

SECTION 6.12       Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:

 

First: to the Trustee, the Agents and their agents and attorneys for amounts due under Section 7.6, including payment of all compensation, fees, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second: to Holders for amounts due and unpaid on the Notes of the applicable series for principal, premium, if any, interest and Additional Amounts, if any, ratably, without preference or priority of any kind (including between different series of Notes if more than one series of Notes is affected), according to the amounts due and payable on such series of Notes for principal, premium, if any, interest and Additional Amounts, if any, respectively; and

 

Third: to the Issuer or any other obligor on the Notes, as their interests may appear, or as a court of competent jurisdiction may direct.

 

The Trustee, upon prior notice to the Issuer, may fix a record date and a payment date for any payment to Holders pursuant to this Section 6.12; provided that the failure to give any such notice shall not affect the establishment of such record date or payment date for Holders pursuant to this Section 6.12.

 

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SECTION 6.13       Restoration of Rights and Remedies. If the Trustee or any Holder of any Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders of the applicable series of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of the applicable series of Notes shall continue as though no such proceeding had been instituted.

 

SECTION 6.14       Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes of any series.

 

SECTION 6.15       Additional Payments. In the case of any Event of Default occurring by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Issuer in bad faith with the intention of avoiding payment of the premium that the Issuer would have had to pay if the Issuer then had elected to redeem a series of Notes pursuant to the optional redemption provisions of this Indenture or was required to repurchase the Notes of a series, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of such series of Notes.

 

ARTICLE VII

 

TRUSTEE

 

SECTION 7.1         Duties of Trustee. (a) If an Event of Default of which a Trust Officer of the Trustee has received written notice 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 their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request of any of the Holders of Notes, unless they shall have offered to the Trustee indemnity or security to its satisfaction against any loss, liability, cost or expense.

 

(b)            Except during the continuance of an Event of Default of which a Trust Officer of the Trustee has received written notice:

 

(1)            The Trustee and the Agents will perform only those duties as are specifically set forth herein and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Agents.

 

(2)            In the absence of bad faith on their part, the Trustee and the Agents may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions and such other documents delivered to them pursuant to Section 11.3 furnished to the Trustee or Agent and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are required to be furnished to the Trustee or the Agents, the Trustee or the Agents, as applicable, shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

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(c)            The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own bad faith or willful misconduct, except that:

 

(1)            This paragraph does not limit the effect of subsection (b) of this Section 7.1.

 

(2)            Neither the Trustee nor any Agent shall be liable for any error of judgment made in good faith by a Trust Officer of such Trustee or Agent, unless it is proved that the Trustee or such Agent was grossly 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 6.8.

 

(d)            No provision of this Indenture shall require the Trustee or any Agent to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties hereunder or to take or omit to take any action under this Indenture or take any action at the request or direction of Holders if it shall have reasonable grounds for believing that repayment of such funds is not assured to it or it does not receive an indemnity or security satisfactory to it in its sole discretion against such risk, liability, loss, fee or expense which might be incurred by it in compliance with such request or direction.

 

(e)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to subsections (a), (b), (c) and (d) of this Section 7.1.

 

(f)            Neither the Trustee nor the Agents shall be liable for interest on any money received by it except as the Trustee and any Agent may agree in writing with the Issuer. Money held by the Trustee in trust or any Agent need not be segregated from other funds except to the extent required by law.

 

(g)            Any provision hereof relating to the conduct or affecting the liability of or affording protection to the Trustee or Agent shall be subject to the provisions of this Section 7.1.

 

(h)            The rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified, are extended to, and shall be enforceable by the Trustee in each of its capacities it which it may serve, and to each Agent, custodian and other person employed to act hereunder.

 

SECTION 7.2         Rights of Trustee. Subject to Section 7.1:

 

(a)            The Trustee and each Agent may rely conclusively on and shall be protected from acting or refraining from acting based upon any document believed by them to be genuine and to have been signed or presented by the proper person. Neither the Trustee nor any Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document, but the Trustee or its Agent, as the case may be, in its discretion, may make reasonable further inquiry or investigation into such facts or matters stated in such document and if the Trustee or its Agent as the case may be, shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, at reasonable times during normal business hours, personally or by agent or attorney. The Trustee shall not be deemed to have notice or any knowledge of any matter (including Defaults or Events of Default) unless a Trust Officer assigned to and working in the Trustee’s Trust & Security Services office has actual knowledge thereof or unless written notice thereof is received by the Trustee, Attention: Trust & Agency Services and such notice references the Notes generally, the Issuer or this Indenture.

 

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(b)            Any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate or Issuer Order and any resolution of the Board of Directors of the Issuer, as the case may be, may be sufficiently evidenced by a Board Resolution.

 

(c)            Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both, which shall conform to the provisions of Sections 11.3 and 11.4. Neither the Trustee nor any Agent shall be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.

 

(d)            The Trustee and any Agent may act through their attorneys and agents and shall not be responsible for the misconduct or negligence of any agent (other than an agent who is an employee of the Trustee or such Agent) appointed with due care.

 

(e)            The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers conferred upon it by this Indenture; provided, however, that the Trustee’s conduct does not constitute willful misconduct, gross negligence or bad faith.

 

(f)            The Trustee or any Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

(g)            Subject to Section 9.2, the Trustee may (but shall not be obligated to), without the consent of the Holders, give any consent, waiver or approval required by the terms hereof, but shall not without the consent of the Holders of not less than a majority in aggregate principal amount of the Notes of each affected series at the time outstanding (i) give any consent, waiver or approval or (ii) agree to any amendment or modification of this Indenture, in each case, that shall have a material adverse effect on the interests of any Holder. The Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any consent, waiver, approval, amendment or modification shall have a material adverse effect on the interests of any Holder.

 

SECTION 7.3         Individual Rights of Trustee. The Trustee or any Agent in its respective individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or its respective Affiliates with the same rights it would have if it were not the Trustee or an Agent. However, in the event that the Trustee acquires any conflicting interest, it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee or resign. Any Agent may do the same with like rights. The Trustee must comply with Sections 7.9 and 7.10.

 

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SECTION 7.4         Trustee’s Disclaimer. The Trustee and the Agents shall not be responsible for and make no representation as to the validity, effectiveness, correctness or adequacy of this Indenture, any Guarantee or the offering materials related to this Indenture or the Notes; it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision hereof; it shall not be responsible for the use or application of any money received by any Agent and it shall not be responsible for any statement or recital herein of the Issuer, or any document issued in connection with the sale of Notes or any statement in the Notes other than the Trustee’s certificate of authentication.

 

SECTION 7.5         Notice of Default. If an Event of Default with respect to any series of Notes occurs and is continuing and a Trust Officer of the Trustee has received written notice of such event, the Trustee shall mail to each Holder of Notes of such series, as their names and addresses appear on the list of Holders described in Section 2.5, notice of the uncured Default or Event of Default within 60 days after the Trustee receives such notice. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, interest or Additional Amounts, if any, on any Note, including the failure to make payment on the Change of Control Payment Date pursuant to a Change of Control Offer, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interest of the Holders of Notes of such series.

 

SECTION 7.6         Compensation and Indemnity. The Issuer shall pay to the Trustee and the Agents from time to time such reasonable compensation as the Issuer and the Trustee shall from time to time agree upon in writing for its acceptance of this Indenture and services hereunder. The Trustee’s and the Agents’ compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and the Agent upon request for all reasonable disbursements, expenses and advances (including reasonable fees and expenses of counsel) incurred or made by it in addition to the compensation for their services, except any such disbursements, expenses and advances as may be attributable to the Trustee’s or any Agent’s gross negligence, willful misconduct or bad faith. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and Agents’ accountants, experts and counsel and any taxes or other expenses incurred by a trust created pursuant to Section 8.4 hereof.

 

The Issuer agrees to pay the reasonable fees and expenses of the Trustee’s legal counsel, White & Case LLP in connection with its review, preparation and delivery of this Indenture and related documentation.

 

The Issuer shall indemnify each of the Trustee, any predecessor Trustee and the Agents (which, for purposes of this paragraph, include such Trustee’s and Agents’ affiliates, officers, directors, employees and agents) and in any other capacity the Trustee may serve hereunder for, and hold them harmless against, any and all loss, damage, claim, expense or liability including taxes (other than taxes based on the income of the Trustee) incurred by the Trustee or an Agent without gross negligence, willful misconduct or bad faith on its part, as determined by a court of competent jurisdiction in a final non-appealable decision in connection with acceptance of administration of this trust and performance of its duties under this Indenture, including the reasonable expenses and attorneys’ fees and expenses of defending itself against any claim of liability arising hereunder. The Trustee and the Agents shall notify the Issuer promptly of any claim asserted against the Trustee or such Agent for which it may seek indemnity. However, the failure by the Trustee or the Agent to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee or such Agent shall cooperate in the defense (and may employ its own counsel reasonably satisfactory to the Trustee) at the Issuer’s expense. The Trustee or such Agent may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made without its written consent, which consent shall not be unreasonably withheld.

 

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To secure the Issuer’s payment obligations in this Section 7.6, the Trustee and the Agents shall have a senior Lien prior to the Notes against all money or property held or collected by the Trustee and the Agents, in its capacity as Trustee or Agent, except money or property held in trust to pay principal or premium, if any, Additional Amounts, if any, or interest on particular Notes.

 

The Issuer’s obligations under this Section 7.6 and any claim arising hereunder shall survive the termination of this Indenture, the resignation or removal of any Trustee or Agent, the discharge of the Issuer’s obligations pursuant to Article VIII and any rejection or termination under any Bankruptcy Law.

 

SECTION 7.7         Replacement of Trustee. The Trustee and any Agent may resign at any time upon 30 days’ prior written notice to the Issuer. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee or Agent by so notifying the Issuer and the Trustee or such Agent, as the case may be, in writing and may appoint a successor trustee or agent with the Issuer’s consent. A resignation or removal of the Trustee or any Agent and appointment of a successor Trustee or Agent, as the case may be, shall become effective only upon the successor Trustee’s or Agent’s acceptance of appointment, as the case may be, as provided in this section. The Issuer may remove the Trustee or an Agent if:

 

(1)            the Trustee or Agent, as the case may be, fails to comply with Section 7.9;

 

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

 

(3)            a receiver or other public officer takes charge of the Trustee or Agent, as the case may be, or its respective property; or

 

(4)            the Trustee or Agent, as the case may be, becomes incapable of acting with respect to its duties hereunder.

 

If the Trustee or an Agent resigns or is removed or if a vacancy exists in the office of Trustee or Agent for any reason, the Issuer shall notify each Holder of such event and shall promptly appoint a successor Trustee or Agent, as the case may be. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may, with the Issuer’s consent, appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.

 

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A successor Trustee or Agent, as the case may be, shall deliver a written acceptance of its appointment to the retiring Trustee or Agent and to the Issuer. Immediately after that, the retiring Trustee or Agent, as the case may be, shall transfer, after payment of all sums then owing to the Trustee or Agent, as the case may be, pursuant to Section 7.6, all property held by it as Trustee or Agent to the successor Trustee or Agent, subject to the Lien provided in Section 7.6, the resignation or removal of the retiring Trustee or Agent, as the case may be, shall become effective, and the successor Trustee or Agent, as the case may be, shall have all the rights, powers and duties of the Trustee or Agent under this Indenture. A successor Trustee or Agent shall mail notice of its succession to each Holder.

 

If a successor Trustee or Agent does not take office within 60 days after the retiring Trustee or Agent resigns or is removed, (i) the retiring Trustee or Agent (as the case may be), the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee or Agent or (ii) the retiring Trustee or Agent may appoint a successor Trustee or Agent, as applicable, at any time prior to the date on which a successor Trustee or Agent takes office, provided that such appointment shall be reasonably satisfactory to the Issuer.

 

If the Trustee or Agent 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 or Agent, as the case may be, and the appointment of a successor thereto.

 

Notwithstanding replacement of the Trustee or Agent pursuant to this Section 7.7, the Issuer’s obligations under Section 7.6 shall continue for the benefit of the retiring Trustee or Agent, as the case may be, and the Issuer shall pay to any replaced or removed Trustee or Agent all amounts owed under Section 7.6 upon such replacement or removal.

 

SECTION 7.8         Successor Trustee by Merger, etc. If the Trustee or Agent consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall, if such resulting, surviving or transferee corporation is otherwise eligible hereunder, be the successor Trustee. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by consolidation, merger or conversion to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

 

SECTION 7.9         Eligibility; Disqualification. This Indenture shall at all times have a Trustee that is an entity organized and doing business under the laws of the United States or any state thereof, or the United Kingdom, or a Member State of the European Union or a political subdivision thereof, that is authorized under examination by federal or state authorities or by the authorities of the United Kingdom or a Member State of the European Union or a political subdivision thereof. No obligor under the Notes or Person directly controlling, controlled by, or under common control with such obligor shall serve as Trustee.

 

SECTION 7.10       Disqualification; Conflicting Interests. Within 90 days after becoming aware that a material conflict of interest exists between the Trustee’s role as a trustee and any other capacity, the Trustee shall either (i) eliminate such conflict of interest or (ii) resign from office; provided, however, that this Indenture, the Notes and the Guarantees shall remain valid notwithstanding a material conflict of interest of the Trustee.

 

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SECTION 7.11       [Intentionally omitted]

 

 SECTION 7.12      Force Majeure. In no event shall the Trustee or Agent, in each of its capacities hereunder, be liable for any failure or delay in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo and government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services or the obligations contemplated by this Indenture.

 

SECTION 7.13       Consequential Loss. Notwithstanding anything to the contrary in this Indenture, in no event shall the Trustee or Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of such loss or damage and regardless of the form of action.

 

ARTICLE VIII

 

SATISFACTION AND DISCHARGE OF INDENTURE

 

SECTION 8.1         Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, with respect to the Notes of any series, elect to have either Section 8.2 or 8.3 be applied to all outstanding Notes of such series upon compliance with the conditions set forth below in this Article VIII.

 

SECTION 8.2         Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.2 with respect to a series of Notes, the Issuer shall be deemed to have been discharged from its obligations with respect to the outstanding Notes of such series and the Guarantors shall be deemed to have been discharged from their obligations with respect to their Guarantees of the Notes of such series, in each case on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged all the obligations relating to the outstanding Notes of the applicable series and such Notes shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.6, Section 8.8 and the other Sections of this Indenture referred to below in this Section 8.2, and to have satisfied all of their other obligations under such Notes, the Guarantees and this Indenture and cured all then existing Events of Default (in each case with respect to such series of Notes)(and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:

 

(1)            the rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, interest and Additional Amounts, if any, on such Notes when such payments are due (including on a Redemption Date) from the trust created pursuant to this Indenture;

 

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

 

(3)            the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s and the Guarantors’ obligations in connection therewith set forth in Article VII hereof; and

 

(4)            this Article VIII and the obligations set forth in Section 8.6 hereof.

 

Subject to compliance with this Article VIII, the Issuer may exercise its option under Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 with respect to the applicable series of Notes. If the Issuer exercises its Legal Defeasance option with respect to a series of Notes, payment of the Notes of such series may not be accelerated because of an Event of Default.

 

SECTION 8.3         Covenant Defeasance. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.3 with respect to a series of Notes, the Issuer and the Guarantors shall be released from any obligations under the covenants contained in Sections 4.5 (other than with respect to the Issuer), 4.8, 4.10, 4.17, 4.19 and 4.27 hereof with respect to the outstanding Notes of such series on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”) and the Notes of such series 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 the purposes hereof, such Covenant Defeasance means that, (i) with respect to the outstanding Notes of the applicable series, the Issuer and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant with respect to such series, 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 (ii) payment on the Notes of such series may not be accelerated because of an Event of Default specified in clause (3) (insofar as it relates to Sections 4.5 (other than with respect to the Issuer), 4.8, 4.10, 4.17, 4.19, and 4.27 hereof) and (4).

 

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 of a series:

 

(1)            the Issuer must irrevocably deposit with the Trustee (or such other entity designated or appointed by the Trustee for this purpose), in trust, for the benefit of the Holders of the Notes of the applicable series, cash in euros in such amounts as will be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay the principal of, interest, premium and Additional Amounts, if any, on the outstanding Notes of the applicable series on the stated maturity or on the applicable redemption date, as the case may be, and the Issuer must specify whether such Notes are being defeased to maturity or to a particular redemption date;

 

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(2)            (2)      in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee confirming that (A) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes of the applicable series will not recognize income, gain or loss for United States federal income tax purposes as a result of such Legal Defeasance and will be subject to United States 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 Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee confirming that the Holders of the outstanding Notes of the applicable series will not recognize income, gain or loss for United States federal income tax purposes as a result of such Covenant Defeasance and will be subject to United States 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 or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);

 

(5)            the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders of such series of Notes over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and

 

(6)            the Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

SECTION 8.5         Satisfaction and Discharge of Indenture. This Indenture will be discharged and will cease to be of further effect as to all Notes of a series issued hereunder when:

 

(1)            either (i) all Notes of such series that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Issuer) have been delivered to the Trustee for cancellation; or (ii) all Notes of such series that have not been delivered to the Trustee or the Registrar for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable at their stated maturity within one year, or if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee, and the Issuer has irrevocably deposited with the Trustee (or such other entity designated or appointed by the Trustee for this purpose), in trust, for the benefit of the Holders of the Notes, cash in euro in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes of such series not delivered to the Trustee or the Registrar for cancellation for principal, premium and Additional Amounts, if any, and accrued interest to the date of maturity or redemption;

 

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(2)            no Default or Event of Default with respect to such series of Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under any other Indebtedness in a principal amount in excess of €150.0 million;

 

(3)            the Issuer and each Guarantor has paid or caused to be paid all sums payable by it under this Indenture with respect to such series of Notes; and

 

(4)            the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes of that series at maturity or the redemption date, as the case may be.

 

SECTION 8.6         Survival of Certain Obligations. Notwithstanding the satisfaction and discharge of this Indenture and of the Notes and the Guarantees (in each case with respect to any series of Notes) referred to in Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Issuer, each Guarantor and the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 4.1, 4.2, 4.5 (only with respect to the Issuer), 4.6, 4.7, 4.9, 4.11, 4.20, 4.21, 4.22, Article VII, Article VIII and Section 11.11 shall survive until the Notes of such series are no longer outstanding, and thereafter the obligations of the Issuer and the Trustee under Articles VII and VIII shall survive. Nothing contained in this Article VIII shall abrogate any of the obligations or duties of the Trustee under this Indenture.

 

SECTION 8.7         Acknowledgment of Discharge by Trustee. Subject to Section 8.10, after (i) the conditions of Section 8.4 or 8.5 have been satisfied, (ii) the Issuer has paid or caused to be paid all other sums payable with respect to a series of Notes hereunder by the Issuer and (iii) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture with respect to such series of Notes have been complied with, the Trustee upon written request shall acknowledge in writing the discharge of all of the Issuer’s obligations under this Indenture with respect to such series of Notes except for those surviving obligations specified in this Article VIII.

 

SECTION 8.8         Application of Trust Moneys. All cash in euros deposited with the Trustee pursuant to Section 8.4 or 8.5 in respect of Notes shall be held in trust and applied by it, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Notes of all sums due and to become due thereon for principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.

 

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The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash deposited pursuant to Section 8.4 or 8.5 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 outstanding Notes.

 

SECTION 8.9         Repayment to the Issuer; Unclaimed Money. The Trustee and any Paying Agent shall promptly pay or return to the Issuer upon Issuer Order any cash held by them at any time that are not required for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes for which cash has been deposited pursuant to Section 8.4 or 8.5.

 

Any money held by the Trustee in trust or any Paying Agent under this Article, for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on any Note and remaining unclaimed for two years after such principal, premium, if any, interest and Additional Amounts, if any, has become due and payable shall be paid to the Issuer upon Issuer Order or if then held by the Issuer shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer give notice to the Holders or, if and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will inform the Companies Announcement Office of Euronext Dublin or in the case of Definitive Notes, in addition to such publication, mail to Holders by first-class mail, postage prepaid, at their respective addresses as they appear on the registration books of the Registrar (and, if and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will inform the Companies Announcement Office of Euronext Dublin), 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, any unclaimed balance of such money then remaining will be repaid to the Issuer.

 

SECTION 8.10       Reinstatement. If the Trustee or any Paying Agent is unable to apply any cash in accordance with Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until such time as the Trustee or Paying Agent is permitted to apply all such cash in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however, that if the Issuer has made any payment of interest on, premium, if any, principal and Additional Amounts, if any, of any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

 

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ARTICLE IX

 

AMENDMENTS, SUPPLEMENTS AND WAIVERS

  

SECTION 9.1         Without Consent of Holders of Notes. Notwithstanding Section 9.2 hereof, the Issuer, the Guarantors and the Trustee together may amend or supplement this Indenture, the Notes or the Guarantees without the consent of any Holder of a Note:

 

(1)            to cure any ambiguity, defect, error or inconsistency;

 

(2)            to add or change any of the provisions of this Indenture or the Notes to such extent as shall be necessary to permit or facilitate the deposit of the Notes with, or on behalf of, a common safekeeper for Euroclear and Clearstream and the registration of such Notes in the name of such common safekeeper (or its nominee), and to otherwise allow the Notes to be held in a manner that will satisfy the Note format eligibility criteria for the Notes to be pledged as collateral in European central banking and monetary operations, or to provide for uncertificated Notes in addition to or in place of certificated Notes;

 

(3)            to provide for the assumption of the Issuer’s or a Guarantor’s obligations to Holders in the case of a merger or consolidation or sale of all or substantially all of the Issuer’s or such Guarantor’s assets, as applicable;

 

(4)            to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Indenture of any Holder;

 

(5)            to allow any Guarantor to execute a supplemental indenture and/or a Guarantee with respect to the Notes;

 

(6)            to evidence and provide the acceptance of the appointment of a successor Trustee under this Indenture;

 

(7)            to conform the text of this Indenture, the Notes or the Guarantees to any provision of the “Description of Notes” in the Offering Memorandum to the extent such provision in the “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture, the Notes or the Guarantee;

 

(8)            to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture; or

 

(9)            to the extent necessary to provide for the granting of a Lien to secure the Notes and/or any Guarantee as contemplated under Section 4.10 hereof.

 

Notwithstanding anything to the contrary in the paragraph above, in order to effect an amendment authorized by clause (5) above, it shall only be necessary for the supplemental indenture providing for the accession of such additional Guarantor to be duly authorized and executed by the Issuer, such additional Guarantor and the Trustee. Any other amendments permitted by this Indenture need only be duly authorized and executed by Issuer and the Trustee.

 

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Without the consent of the Holders of at least 80% in aggregate principal amount of the Notes then outstanding of each affected series, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder) release any Guarantor from any of its obligations under its Guarantee or this Indenture with respect to such affected series of Notes, except in accordance with the terms of this Indenture.

 

Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture which adversely affects its own rights, duties or immunities hereunder or otherwise.

 

For so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice to the Companies Announcement Office of Euronext Dublin of any of the foregoing amendments, supplements and waivers and provide, if necessary, a supplement to the Offering Memorandum setting forth reasonable details in connection with any such amendments, supplements or waivers.

 

SECTION 9.2         With Consent of Holders of Notes. The Issuer, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Guarantees with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding of each series affected by such amendment or supplement (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), and, subject to Section 6.7, any existing Default, an Event of Default or its consequences or compliance with any provision of this Indenture, the Notes or the Guarantees may be waived with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding of each series affected by such waiver (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes). However, unless consented to by Holders of at least 90% of the aggregate principal amount of the then outstanding Notes of each affected series (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), without the consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder of the Notes) with respect to such affected series:

 

(1)            reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

 

(2)            reduce the principal of or change the fixed maturity of any Note;

 

(3)            reduce the rate of or change the time for payment of interest on any Note;

 

(4)            reduce the premium or amount payable upon the redemption of any Note or change the time at which any Note may be redeemed as described in Paragraphs 7 and 8 of the relevant series of Notes;

 

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(5)            waive a Default or Event of Default in the payment of principal of, or interest, premium or Additional Amounts, if any, on the Notes (except a rescission of acceleration of such Notes by the Holders of at least a majority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration);

  

(6)            make any Note payable in money other than that stated in the Notes;

 

(7)            make any change in the provisions of this Indenture relating to the rights of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes or any guarantee in respect thereof;

 

(8)            waive a redemption payment with respect to any Note (other than a payment required by Section 4.19 hereof);

 

(9)            make any change in the provisions of this Indenture described in Section 4.20 hereof that adversely affects the rights of any Holder of such Notes or amends the terms of such Notes in a way that would result in a loss of an exemption from any of the Taxes described thereunder or an exemption from any obligation to withhold or deduct Taxes so described thereunder unless the Payor agrees to pay Additional Amounts, if any, in respect thereof; or

 

(10)            make any change in the preceding amendment and waiver provisions.

 

Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture adversely affects the Trustee’s own rights, duties or immunities hereunder or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. It shall not be necessary for the consent of the Holders of Notes 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. After an amendment, supplement or waiver under this Section becomes effective, the Issuer shall mail to the Holders of Notes of each affected series a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.

 

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After an amendment, supplement or waiver under the foregoing paragraph becomes effective, the Issuer shall, in the case of Definitive Notes, mail to the Holders of the Notes of each affected series a notice briefly describing the amendment, supplement or waiver. However, the failure to give such notice to all Holders of the Notes of each affected series, or any defect therein, will not in any way impair or affect the validity of such amended or supplemented indenture or waiver. In addition, for so long as the Notes of any affected series are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice of any amendment, supplement and waiver to the Companies Announcement Office of Euronext Dublin.

  

Any amendment, supplement or waiver pursuant to Section 9.1 or this Section 9.2 which modifies the rights of the Holders of Notes of any series with respect to any covenant or other provision shall be deemed not to affect the rights under the Indenture of the Holders of Notes of any other series.

 

SECTION 9.3         Revocation and Effect of Consents. (a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder of a Note.

 

(b)            The Issuer may, but shall not be obligated to, fix a record date for determining which Holders of the Notes must consent to such amendment, supplement or waiver. If the Issuer fixes a record date, the record date shall be fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of Notes furnished to the Trustee prior to such solicitation pursuant to Section 2.5 or (ii) such other date as the Issuer shall designate.

 

SECTION 9.4         Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes of a series 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 shall, at the cost and expense of the Issuer, execute any amendment, supplement or waiver authorized pursuant to this Article IX; provided, however, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which adversely affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive indemnity reasonably satisfactory to it, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that (i) the execution of any amendment, supplement or waiver authorized pursuant to this Article IX is authorized or permitted by this Indenture and (ii) subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws affecting the rights of creditors generally and to the principles of equity, whether considered in a proceeding at law or in equity, constitutes the legal, valid and binding obligations of the Issuer enforceable in accordance with its terms; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

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ARTICLE X

 

GUARANTEES

  

SECTION 10.1        Guarantee. (a) Subject to the provisions of Section 10.2 hereof and any other limitations under applicable law, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guarantee Obligations”). Each Guarantor further agrees (to the extent permitted by and subject to requirements under applicable law) that the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X (to the extent permitted by applicable and subject to requirements under applicable law) notwithstanding any extension or renewal of any Guarantee Obligation.

 

(b)            To the extent permitted by law, each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Guarantee Obligations and also waives notice of protest for nonpayment, including, for the avoidance of doubt, any right of subrogation in relation to the Holders in respect of any such Guarantee Obligations. Each Guarantor waives notice of any default under the Notes or the Guarantee Obligations. The obligations of each Guarantor hereunder shall not (to the extent permitted by and subject to requirements under applicable law) be affected by: (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer, any other Guarantor or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guarantee Obligations or any of them; or (e) any change in the ownership of the Issuer.

 

(c)            Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantee Obligations.

 

(d)            Subject to the provisions of Section 10.2 hereof, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantee Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent permitted by law) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantee Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent permitted by law) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Note or any other agreement, (ii) any waiver or modification of any thereof, (iii) any default, failure or delay, willful or otherwise, in the performance of the Guarantee Obligations, or (iv) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.

 

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(e)            Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest or Additional Amounts, if any, on any of the Guarantee Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization (including examinership) of the Issuer or otherwise.

 

(f)             Subject to the provisions of Section 10.2 hereof, in furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantee Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee for and on behalf of itself and the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantee Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantee Obligations then due and owing (but only to the extent not prohibited by law). Payments made under this guarantee shall be made to the Trustee on behalf of the Holders.

 

(g)            Each Guarantor further agrees that, as between it, on the one hand, and the Holders, on the other hand, but subject always to Section 10.2 hereof, (x) the maturity of the Guarantee Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantee Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantee Obligations, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purposes of its Guarantee.

 

(h)            Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.

 

(i)            Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof.

 

SECTION 10.2       Limitation on Liability. (a) Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guarantee Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally or other considerations under applicable law.

 

(b)            The liability of each Parent Guarantor and Subsidiary Guarantor under this Article X shall be limited to the extent of the limitations (if any) set out in any supplemental indenture executed by a Subsidiary providing for a Guarantee.

 

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SECTION 10.3       Successors and Assigns. This Article X shall be binding upon each Guarantor and its successors and assigns and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.

 

SECTION 10.4       No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article X shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article X at law, in equity, by statute or otherwise.

 

SECTION 10.5       Modification. No modification, amendment or waiver of any provision of this Article X, nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand in the same, similar or other circumstances.

 

SECTION 10.6       Release of Guarantor. The Guarantee of a Guarantor will be released with respect to a series of Notes:

 

(1)            with respect to a Subsidiary Guarantor, in connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) SKA or a Subsidiary of SKA;

 

(2)            with respect to a Subsidiary Guarantor, in connection with any sale or other disposition of Capital Stock of that Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) SKA or a Subsidiary of SKA, if such Subsidiary Guarantor ceases to be a Subsidiary as a result of such sale or other disposition;

 

(3)            with respect to a Guarantor (other than SKG or SKA), upon the release or discharge of the guarantee or other obligation of such Guarantor under the Revolving Facility Agreement, or such other guarantee or other obligation that resulted in the creation of such Guarantee, except a release or discharge by or as a result of payment under such guarantee; provided that the guarantee of such Guarantor under the Existing Senior Notes has been released or is concurrently released;

 

(4)            with respect to a Guarantor (other than SKA), by written notice from the Issuer to the Trustee if such Guarantor does not then guarantee any obligations under any of the Existing Senior Notes (after giving effect to Indebtedness and guarantees concurrently being released or repaid);

 

(5)            in accordance with Article IX;

 

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(6)            upon the full and final payment and performance of all obligations of the Issuer and the Guarantors under this Indenture (with respect to such series) and the Notes of such series;

  

(7)            upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge of this Indenture with respect to such series of Notes as provided for in Article VIII; or

 

(8)            with respect to a Subsidiary Guarantor, by written notice from the Issuer to the Trustee so long as the Notes of that series have an Investment Grade rating from two or more Rating Agencies; provided that none of the Existing Senior Notes are guaranteed by such Subsidiary Guarantor (after giving effect to guarantees concurrently being released) and no Default or Event of Default shall have occurred and be continuing at the time of such written notice,

 

provided, however, that in the case of clauses (1) and (2) above, the Issuer provides an Officers’ Certificate to the Trustee to the effect that the Issuer will comply with its obligations under Section 4.6.

 

At the request of the Issuer, the Trustee shall execute and deliver an appropriate instrument evidencing such release.

 

SECTION 10.7      Execution of Supplemental Indenture for Future Guarantors. Each Subsidiary and other Person which is required to become a Guarantor pursuant to Section 4.8 shall promptly execute and deliver to the Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to which such Subsidiary or other Person shall become a Guarantor under this Article X and shall guarantee the Guarantee Obligations. Concurrently with the execution and delivery of such supplemental indenture, the Issuer shall deliver to the Trustee an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee and an Officers’ Certificate to the effect (i) that such supplemental indenture has been duly authorized, executed and delivered by such Subsidiary or other Person and (ii) that, subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws affecting the rights of creditors generally and to the principles of equity, whether considered in a proceeding at law or in equity, the Guarantee of such Guarantor is a valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms and to such other matters as the Trustee may reasonably request; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

ARTICLE XI

 

MISCELLANEOUS

 

SECTION 11.1      Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telecopier or first-class mail, postage prepaid, addressed as follows:

 

if to the Issuer or any Guarantor:

 

Attention: Secretary

 

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Smurfit Kappa Treasury Unlimited Company 

Beech Hill 

Clonskeagh 

Dublin 4

Ireland 

Facsimile: +353-1-283-7113 with a copy to:

 

Attention: Mr. Dennis M. Myers, P.C. 

Kirkland & Ellis LLP 

300 N. LaSalle 

Chicago, Illinois 60654 

United States 

Facsimile: +1-312-862-2200

 

if to the Trustee:

 

Attention: Trust & Agency Services 

Deutsche Trustee Company Limited 

Winchester House 

1 Great Winchester Street 

London EC2N 2DB 

United Kingdom 

Facsimile No: +44-207-547-6149

 

if to the Paying Agent:

 

Attention: Trust & Agency Services 

Deutsche Bank AG, London Branch 

Winchester House 

1 Great Winchester Street 

London EC2N 2DB 

United Kingdom 

Facsimile No.: +44-207-547-6149

 

if to the Transfer Agent or Registrar:

 

Deutsche Bank Luxembourg S.A. 

2, boulevard Konrad Adenauer 

L-1115 Luxembourg 

Grand Duchy of Luxembourg 

Facsimile No.: +352-473-136

 

Each of the Issuer and the Trustee by written notice to each other such Person may designate additional or different addresses for notices to such Person. Any notice or communication to the Issuer and the Trustee shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if telecopied; and five calendar days after mailing if sent by first class mail, postage prepaid (except that a notice of change of address and a notice to the Trustee shall not be deemed to have been given until actually received by the addressee).

 

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In the case of Definitive Notes, all notices to Holders of the Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. And, so long as any of the Notes are listed on Euronext Dublin, and the rules of Euronext Dublin so require, notices will be given to the Companies Announcement Office of Euronext Dublin. Each such notice shall be deemed to have been given on the date of such publication, or, if published more than once on different dates, on the first date on which publication is made, provided that, if notices are mailed, such notice shall be deemed to have been given on the later of such publication and the seventh day after being so mailed. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to the applicable Clearing Agencies, which will give notice of such notice to the holders of beneficial interests in the Notes and all notices that are required to be delivered to Holders will be deemed delivered for purposes of this Indenture if delivered to such Clearing Agencies for communication to holders of book-entry interests. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to such Person if so mailed within the time prescribed. 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. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

 

SECTION 11.2       Communications by Holders with Other Holders. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and any other person shall have the protection of Section 312(c) of the TIA.

 

SECTION 11.3       Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee or an Agent to take any action under this Indenture, the Issuer shall furnish to the Trustee at the request of the Trustee:

 

(1)            an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.4) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied or complied with; and

 

(2)            an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.4) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied or complied with.

 

In any case where several matters are required to be certified by, or covered by an Opinion of Counsel of, any specified Person, it is not necessary that all such matters be certified by, or covered by the Opinion of Counsel of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an Opinion of Counsel with respect to some matters and one or more such Persons as to other matters, and any such Person may certify or give an Opinion of Counsel as to such matters in one or several documents.

 

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Any certificate of an Officer of the Issuer may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such Officer knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the matters upon which his certificate is based are erroneous. Any Opinion of Counsel may be based, and may state that it is so based, insofar as it relates to factual matters, upon a certificate of, or representations by, an officer or officers of the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate 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 11.4       Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

(1)            a statement that the Person making such certificate or opinion has read such covenant or condition;

 

(2)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)            a statement that, in the opinion of such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(4)            a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with, provided, however, that an issuer of an Opinion of Counsel may reasonably rely as to any matter of fact on an Officers’ Certificate or a certificate of a public official.

 

SECTION 11.5       Rules by Trustee, Paying Agent, Registrar, Transfer Agent. The Trustee, the Paying Agent, the Registrar or the Transfer Agent may make reasonable rules for its functions.

 

SECTION 11.6       Legal Holidays. If a payment date is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.

 

SECTION 11.7       Governing Law. Each of this Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

SECTION 11.8       Submission to Jurisdiction; Appointment of Agent for Service. To the fullest extent permitted by applicable law, the Issuer and each Guarantor irrevocably submits to the non-exclusive jurisdiction of and venue in any federal or state court in the Borough of Manhattan in the City of New York, County and State of New York, United States of America, in any suit or proceeding based on or arising out of or under or in connection with this Indenture or any of the transactions contemplated hereby, and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Issuer and each Guarantor, to the fullest extent permitted by applicable law, irrevocably and fully waive the defense of an inconvenient forum to the maintenance of such suit or proceeding and hereby irrevocably designate and appoint Smurfit Kappa Packaging LLC (the “Authorized Agent”) as its authorized agent upon whom process may be served in any such suit or proceeding. The Issuer and each Guarantor represent and warrant that the Authorized Agent has accepted such appointment and irrevocably agreed to act as said agent for service of process. The Issuer and each Guarantor agree that service of process upon its Authorized Agent and written notice of said service to the Issuer or a Guarantor, mailed by first class mail or delivered to its Authorized Agent shall be deemed in every respect effective service of process upon the Issuer or such Guarantor, respectively, in any such suit or proceeding. Nothing herein shall affect the right of any person to serve process in any other manner permitted by law. The Issuer agrees that a final action in any such suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other lawful manner. Notwithstanding the foregoing, any action against the Issuer arising out of or based on this Indenture or the transactions contemplated hereby may also be instituted in any competent court in Ireland and the Issuer expressly accepts the jurisdiction of any such court in any such action. The Issuer hereby irrevocably waives, to the extent permitted by law, any immunity to jurisdiction to which it may otherwise be entitled (including immunity to pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Indenture, the Notes or the transactions contemplated hereby. The provisions of this Section 11.8 are intended to be effective upon the execution of this Indenture and the Notes without any further action by the Issuer, any Guarantor or the Trustee and the introduction of a true copy of this Indenture into evidence shall be conclusive and final evidence as to such matters.

 

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SECTION 11.9       No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of any of the Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

SECTION 11.10      No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders. No director, officer, employee, incorporator or stockholder of the Parent Guarantors, the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Parent Guarantors, the Issuer or any Subsidiary Guarantor under the Notes, the Guarantees or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

SECTION 11.11      Currency Indemnity. The euro is the sole currency of account and payment for all sums payable by the Issuer and the Guarantors under or in connection with the Notes and the Guarantees, including damages. Any amount received or recovered in a currency other than euro whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, any Guarantor or otherwise by any Holder or by the Trustee, as the case may be, in respect of any sum expressed to be due to it from the Issuer or a Guarantor will only constitute a discharge to the Issuer or the Guarantor, as applicable, to the extent of the euro amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that euro amount is less than the euro amount expressed to be due to the recipient under any Note, any Guarantee or to the Trustee, the Issuer and the Guarantors will indemnify them on a joint and several basis against any loss sustained by such recipient as a result. In any event, the Issuer and the Guarantors will indemnify the recipient on a joint and several basis against the cost of making any such purchase. For the purposes of this Section 11.11, it will be sufficient for the Holder of a Note or the Trustee to certify in a satisfactory manner (indicating the sources of information used) that it would have suffered a loss had an actual purchase of euro been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of euro on such date had not been practicable, on the first date on which it would have been practicable, it being required that the need for a change of date be certified in the manner mentioned above). These indemnities constitute a separate and independent obligation from the Issuer’s and the Guarantors’ other obligations, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by any Holder of a Note or the Trustee and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note, any Guarantee or to the Trustee.

 

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SECTION 11.12     Currency Calculation. Except as otherwise expressly set forth herein, for purposes of determining compliance with any euro-denominated restriction herein, the euro-equivalent amount for purposes hereof that is denominated in a non-euro currency shall be calculated based on the relevant currency exchange rate in effect on the date such non-euro amount is incurred or made, as the case may be.

 

SECTION 11.13     Information. For so long as any Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, copies of this Indenture will be made available through the offices of the Irish listing agent.

 

SECTION 11.14     Successors. All agreements of the Issuer and the Guarantors in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.

 

SECTION 11.15     Counterpart Originals. All parties hereto may sign any number of copies of this Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent one and the same agreement.

 

SECTION 11.16     Severability. In case any one or more of the provisions in this Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

SECTION 11.17     Table of Contents, Headings, etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

67

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of the date first written above.

 

  Very truly yours,
   
  ISSUER:
   
  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
  By: /s/ Kenneth Bowles
    Name: Kenneth Bowles
    Title: Director

 

[Signature Page to the Indenture]

 

 

 

  IRISH GUARANTORS:
   
  SMURFIT KAPPA ACQUISITIONS
   
    UNLIMITED COMPANY
   
  SMURFIT KAPPA GROUP PLC
   
  SMURFIT KAPPA INVESTMENTS LIMITED
   
  SMURFIT KAPPA HOLDINGS LIMITED
   
  SMURFIT KAPPA TREASURY FUNDING
   
    DESIGNATED ACTIVITY COMPANY

 

    By: /s/ Kenneth Bowles
      Name: Kenneth Bowles
      Title: Authorized Attorney

 

[Signature Page to the Indenture]

 

 

  

 

DUTCH GUARANTOR: 

   
   
  SMURFIT INTERNATIONAL B.V.
   
   
  By: /s/ PJA Koelewijn
    Name: PJA Koelewijn
    Title: Authorized Signatory

 

[Signature Page to the Indenture]

 

 

 

  DEUTSCHE TRUSTEE COMPANY
  LIMITED, as Trustee
   
  By: /s/ Stephanie McIntosh
    Name: Stephanie McIntosh
    Title:
     
     
  By: /s/ S Ferguson
    Name: S Ferguson
    Title:

 

[Signature Page to the Indenture]

 

 

 

  DEUTSCHE BANK AG, LONDON BRANCH,
  as Paying Agent
   
  By: /s/ Stephanie McIntosh
    Name: Stephanie McIntosh
    Title:
     
     
  By: /s/ S Ferguson
    Name: S Ferguson
    Title:

 

[Signature Page to the Indenture]

 

 

 

 

DEUTSCHE BANK LUXEMBOURG S.A.,

  as Transfer Agent and Registrar
   
  By: /s/ Stephanie McIntosh
    Name: Stephanie McIntosh
    Title:
     
     
  By: /s/ S Ferguson
    Name: S Ferguson
    Title:

 

[Signature Page to the Indenture]

 

 

 

SCHEDULE A

SUBSIDIARY GUARANTORS

 

Name Jurisdiction Registration Number  
(or equivalent, if any)  
     
   
Smurfit Kappa Treasury Funding Designated Activity Company (previously Smurfit Kappa Treasury Funding Limited, Smurfit Capital Funding Limited and Smurfit Capital Funding Public Limited Company) Ireland 239631  
Smurfit International B.V. Netherlands 33149443  

  

A-1

 

 

EXHIBIT A-1

 TO THE INDENTURE

 

[FORM OF FACE OF GLOBAL NOTE]

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Global Securities Legend]

 

UNLESS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V. (“EUROCLEAR”) OR CLEARSTREAM BANKING S.A. (“CLEARSTREAM”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF EUROCLEAR OR CLEARSTREAM OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

  

A-2

 

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

A-3

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

A-4

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY
0.50% SENIOR NOTE DUE 2029

 

Common Code:____________

 

ISIN:____________

 

No. ___

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay €_______to_______ or registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on September 22, 2029.

 

Interest Payment Dates: September 22 of each year, commencing September 22, 2022.

 

Record Dates: The Business Day (for this purpose a day on which Clearstream and Euroclear are open for business) immediately prior to September 22 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

This is to certify that Clearstream Nominees Limited of 11 Westferry Circus, Canary Wharf, London, E14 4HE, United Kingdom with registration number 02253120 is the registered holder of the aggregate nominal amount of €      ____________.

 

This Note shall not become valid for any purpose until effectuated by the entity appointed as Common Safekeeper by the ICSDs.

 

A-5

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
  By:  
  Name:  
  Title:  
   
  By:  
  Name:    
  Title:  

 

This is one of the Notes referred to  
in the within-mentioned Indenture:  
   
Deutsche Bank Luxembourg S.A.,  
as Authenticating Agent for  
DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee  
   
By:            
Name:      
Title:    
     
Dated:      

 

COMMON SAFEKEEPER  
   
This note is effectuated without recourse, warranty or liability by or on behalf of CLEARSTREAM BANKING, S.A.  
   
as Common Safekeeper  
   
By:    
  Authorized Signatory  

 

A-6

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

0.50% SENIOR NOTE DUE 2029

 

1.            Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2029 Notes will be payable annually in arrears on September 22 of each year, commencing September 22, 2022. The Issuer will make each interest payment to the Holders of record at the close of business on the Business Day (for this purpose a day on which Clearstream and Euroclear are open for business) immediately preceding September 22 of each year. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the 2029 Notes will accrue at the rate of 0.50% per annum on the aggregate nominal amount of the 2029 Notes outstanding. Interest accruing on all 2029 Notes then outstanding shall be payable in cash. Interest on the 2029 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid or duly provided for on the 2029 Notes (or September 22, 2021 if no interest has been paid on the 2029 Notes), to but excluding the next scheduled interest payment date, pursuant to the convention referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.            Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

A-7

 

 

(2)            any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)            except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)            any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

(7)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

A-8

 

 

(8)            any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(9)            any combination of clauses (1) through (8) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (9) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.            Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. Immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.            Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank AG, London Branch, will act as Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.            Indenture. The Issuer issued the Notes under an Indenture, dated as of September 22, 2021 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 0.50% Senior Notes due 2029 (the “2029 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

A-9

 

 

6.            Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.            Optional Redemption. Except as set forth below or under Paragraph 8 and 10, none of the 2029 Notes will be redeemable at the Issuer’s option prior to June 22, 2029.

 

At any time prior to June 22, 2029, the Issuer may redeem the 2029 Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such 2029 Note on June 22, 2029, plus (ii) all required interest payments due on such 2029 Note through June 22, 2029 (excluding accrued but unpaid interest to the date of redemption) computed using a discount rate equal to the Bund Rate as of such date of redemption plus 15 basis points calculated by the Issuer, plus accrued and unpaid interest and Additional Amounts, 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).

 

On or after June 22, 2029, the Issuer may redeem the 2029 Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

If and so long as the 2029 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2029 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2029 Notes that will remain outstanding following such redemption.

 

If Holders of not less than 80% in aggregate principal amount of the 2029 Notes validly tender and do not withdraw such 2029 Notes in any tender offer, including a Change of Control Offer, and the Issuer, or any Affiliate or third party making a tender offer, including a Change of Control Offer, in lieu of the Issuer purchases all of the 2029 Notes validly tendered and not withdrawn by such Holders, the Issuer or such Affiliate or third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the tender offer, including a Change of Control Offer, to redeem all 2029

 

Notes that remain outstanding following such purchase at a price in cash equal to 100% of the principal amount of all such 2029 Notes, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the date of redemption.

 

A-10

 

 

8.            Special Tax Redemption. The Issuer may, at its option, redeem the 2029 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2029 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2029 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2029 Notes would be, required to pay Additional Amounts with respect to the 2029 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2029 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2029 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2029 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2029 Notes.

 

9.            Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

A-11

 

 

10.            Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2029 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the 2029 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2029 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2029 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

11.            [Intentionally omitted]

 

12.            Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.            [Intentionally omitted]

 

14.            [Intentionally omitted]

 

15.            Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

16.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

17.            Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

18.            Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

A-12

 

 

19.            Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

20.            Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

21.            Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

22.            Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

23.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Parent Guarantors, the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Parent Guarantors, the Issuer or any Subsidiary Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

24.            Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note and the entity appointed as Common Safekeeper by Euroclear and Clearstream effectuates this Note.

 

25.            Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

26.            ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

27.            Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

A-13

 

 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL AMOUNT

 

The initial principal amount at maturity of this Note shall be €        . The following decreases/increases in the principal amount at maturity of this Note have been made:

 

Date of
Decrease/
Increase		   Decrease in
Principal
Amount at
Maturity		   Increase in
Principal
Amount at
Maturity		   Total Principal
Amount at
Maturity
Following such
Decrease/
Increase		   Notation
Made by
or on
Behalf of
Trustee
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 

 

A-14

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date:_______________

 

Your Signature:_______________

(Sign exactly as your name appears on the other side of this Note)

 

A-15

 

 

EXHIBIT A-2

TO THE INDENTURE

 

[FORM OF FACE OF GLOBAL NOTE]

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Global Securities Legend]

 

UNLESS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V. (“EUROCLEAR”) OR CLEARSTREAM BANKING S.A. (“CLEARSTREAM”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF EUROCLEAR OR CLEARSTREAM OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

A-16

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

A-17

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

A-18

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

1.00% SENIOR NOTE DUE 2033

 

Common Code:____________

 

ISIN:____________

 

No. ___

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay €__________to__________ or registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on September 22, 2033.

 

Interest Payment Dates: September 22 of each year, commencing September 22, 2022.

 

Record Dates: The Business Day (for this purpose a day on which Clearstream and Euroclear are open for business) immediately prior to September 22 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

This is to certify that Clearstream Nominees Limited of 11 Westferry Circus, Canary Wharf, London, E14 4HE, United Kingdom with registration number 02253120 is the registered holder of the aggregate nominal amount of €_______________.

 

This Note shall not become valid for any purpose until effectuated by the entity appointed as Common Safekeeper by the ICSDs.

 

A-19

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
  By:  
  Name:  
  Title:  
   
  By:  
  Name:    
  Title:  

 

This is one of the Notes referred to  
in the within-mentioned Indenture:  
   
Deutsche Bank Luxembourg S.A.,  
as Authenticating Agent for  
DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee  
   
By:            
Name:      
Title:    
     
Dated:      

 

COMMON SAFEKEEPER  
   
This note is effectuated without recourse, warranty or liability by or on behalf of CLEARSTREAM BANKING, S.A.  
   
as Common Safekeeper  
   
By:    
  Authorized Signatory  

 

A-20

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

1.00% SENIOR NOTE DUE 2033

 

1.            Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2033 Notes will be payable annually in arrears on September 22 of each year, commencing September 22, 2022. The Issuer will make each interest payment to the Holders of record at the close of business on the Business Day (for this purpose a day on which Clearstream and Euroclear are open for business) immediately preceding September 22 of each year. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the 2033 Notes will accrue at the rate of 1.00% per annum on the aggregate nominal amount of the 2033 Notes outstanding. Interest accruing on all 2033 Notes then outstanding shall be payable in cash. Interest on the 2033 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid or duly provided for on the 2033 Notes (or September 22, 2021 if no interest has been paid on the 2033 Notes), to but excluding the next scheduled interest payment date, pursuant to the convention referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.            Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

A-21

 

 

(2)            any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)            except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)            any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

(7)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

A-22

 

 

(8)            any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(9)            any combination of clauses (1) through (8) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (9) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.            Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. Immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.            Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank AG, London Branch, will act as Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.            Indenture. The Issuer issued the Notes under an Indenture, dated as of September 22, 2021 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 1.00% Senior Notes due 2033 (the “2033 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

A-23

 

 

6.            Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.            Optional Redemption. Except as set forth below or under Paragraph 8 and 10, none of the 2033 Notes will be redeemable at the Issuer’s option prior to June 22, 2033.

 

At any time prior to June 22, 2033, the Issuer may redeem the 2033 Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such 2033 Note on June 22, 2033, plus (ii) all required interest payments due on such 2033 Note through June 22, 2033 (excluding accrued but unpaid interest to the date of redemption) computed using a discount rate equal to the Bund Rate as of such date of redemption plus 20 basis points calculated by the Issuer, plus accrued and unpaid interest and Additional Amounts, 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).

 

On or after June 22, 2033, the Issuer may redeem the 2033 Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

If and so long as the 2033 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2033 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2033 Notes that will remain outstanding following such redemption.

 

If Holders of not less than 80% in aggregate principal amount of the 2033 Notes validly tender and do not withdraw such 2033 Notes in any tender offer, including a Change of Control Offer, and the Issuer, or any Affiliate or third party making a tender offer, including a Change of Control Offer, in lieu of the Issuer purchases all of the 2033 Notes validly tendered and not withdrawn by such Holders, the Issuer or such Affiliate or third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the tender offer, including a Change of Control Offer, to redeem all 2033

 

Notes that remain outstanding following such purchase at a price in cash equal to 100% of the principal amount of all such 2033 Notes, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the date of redemption.

 

A-24

 

 

8.            Special Tax Redemption. The Issuer may, at its option, redeem the 2033 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2033 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2033 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2033 Notes would be, required to pay Additional Amounts with respect to the 2033 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2033 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2033 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2033 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2033 Notes.

 

9.            Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

A-25

 

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.            Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2033 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the 2033 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2033 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2033 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

11.            [Intentionally omitted]

 

12.            Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.            [Intentionally omitted]

 

14.            [Intentionally omitted]

 

15.            Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

16.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

17.            Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

18.            Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

A-26

 

 

19.            Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

20.            Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

21.            Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

22.            Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

23.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Parent Guarantors, the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Parent Guarantors, the Issuer or any Subsidiary Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

24.            Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note and the entity appointed as Common Safekeeper by Euroclear and Clearstream effectuates this Note.

 

25.            Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

26.            ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

27.            Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

A-27

 

 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL AMOUNT

 

The initial principal amount at maturity of this Note shall be €        . The following decreases/increases in the principal amount at maturity of this Note have been made:

Date of
Decrease/
Increase		   Decrease in
Principal
Amount at
Maturity		   Increase in
Principal
Amount at
Maturity		   Total Principal
Amount at
Maturity
Following such
Decrease/
Increase		   Notation
Made by
or on
Behalf of
Trustee
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 

 

A-28

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date:_______________

 

Your Signature:_______________

(Sign exactly as your name appears on the other side of this Note)

 

A-29

 

 

EXHIBIT B-1

TO THE INDENTURE

 

[FORM OF FACE OF DEFINITIVE NOTE]

 

THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-1

 

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-2

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

[Definitive Securities Legend]

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER SHALL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

B-3

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

0.50% SENIOR NOTE DUE 2029

 

Common Code:____________

 

ISIN:____________

 

No.______________________________________________________________________ €___________

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay €__________to __________ or registered assigns upon surrender hereof the principal sum of__________ Euros (€__________), on September 22, 2029.

 

Interest Payment Dates: September 22 of each year, commencing September 22, 2022.

 

Record Dates: September 8 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

B-4

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
  By:  
  Name:  
  Title:  
   
  By:  
  Name:    
  Title:  

 

This is one of the Notes referred to  
in the within-mentioned Indenture:  
   
Deutsche Bank Luxembourg S.A.,  
as Authenticating Agent for  
DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee  
   
By:            
Name:      
Title:    
     
Dated:      

 

B-5

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

0.50% SENIOR NOTE DUE 2029

 

1.            Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2029 Notes will be payable annually in arrears on September 22 of each year, commencing September 22, 2022. The Issuer will make each interest payment to the Holders of record at the close of business on the immediately preceding September 8. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the 2029 Notes will accrue at the rate of 0.50% per annum on the aggregate nominal amount of the 2029 Notes outstanding. Interest accruing on all 2029 Notes then outstanding shall be payable in cash. Interest on the 2029 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid or duly provided for on the 2029 Notes (or September 22, 2021 if no interest has been paid on the 2029 Notes), to but excluding the next scheduled interest payment date, pursuant to the convention referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.            Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

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(2)            any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)            except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)            any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

(7)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

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(8)            any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(9)            any combination of clauses (1) through (8) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (9) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.            Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. With respect to payments in euros, if (i) a Holder has given wire transfer instructions to the Issuer and the Paying Agent in writing, (ii) the Paying Agent has received such written wire transfer instruction at least 15 days prior to the date of the relevant payment and (iii) for so long as the Notes of the relevant series are listed on Euronext Dublin, such holder has also provided such notice to the Paying Agent, then the Issuer will pay all interest, premium and Additional Amounts, if any, on that Holder’s Notes in accordance with those instructions by wire transfer of same day funds to the Paying Agent who in turn will wire such funds to the Holder hereof or to such other Person as the Holder hereof may in writing to the Paying Agent direct. In all other cases, the Issuer may elect to make payments of interest, premium and Additional Amounts, if any, on a Holder’s Notes by check mailed to the Holders at their addresses set forth in the register of Holders. Payments on Notes will be made through the office or agency of the Paying Agent and Registrar for the Notes unless the Issuer elects to make interest payments by check as previously described. If payments are made through the Paying Agent, immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.            Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank AG, London Branch, will act as Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

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5.            Indenture. The Issuer issued the Notes under an Indenture, dated as of September 22, 2021 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 0.50% Senior Notes due 2029 (the “2029 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

6.            Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.            Optional Redemption. Except as set forth below or under Paragraph 8 and 10, none of the 2029 Notes will be redeemable at the Issuer’s option prior to June 22, 2029.

 

At any time prior to June 22, 2029, the Issuer may redeem the 2029 Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such 2029 Note on June 22, 2029, plus (ii) all required interest payments due on such 2029 Note through June 22, 2029 (excluding accrued but unpaid interest to the date of redemption) computed using a discount rate equal to the Bund Rate as of such date of redemption plus 15 basis points calculated by the Issuer, plus accrued and unpaid interest and Additional Amounts, 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).

 

On or after June 22, 2029, the Issuer may redeem the 2029 Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

If and so long as the 2029 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2029 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2029 Notes that will remain outstanding following such redemption.

 

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If Holders of not less than 80% in aggregate principal amount of the 2029 Notes validly tender and do not withdraw such 2029 Notes in any tender offer, including a Change of Control Offer, and the Issuer, or any Affiliate or third party making a tender offer, including a Change of Control Offer, in lieu of the Issuer purchases all of the 2029 Notes validly tendered and not withdrawn by such Holders, the Issuer or such Affiliate or third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the tender offer, including a Change of Control Offer, to redeem all 2029 Notes that remain outstanding following such purchase at a price in cash equal to 100% of the principal amount of all such 2029 Notes, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the date of redemption.

 

8.            Special Tax Redemption. The Issuer may, at its option, redeem the 2029 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2029 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2029 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2029 Notes would be, required to pay Additional Amounts with respect to the 2029 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2029 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2029 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2029 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2029 Notes.

 

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9.            Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.            Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2029 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the 2029 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2029 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2029 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

11.            [Intentionally omitted]

 

12.            Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.            [Intentionally omitted]

 

14.            [Intentionally omitted]

 

15.            Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

16.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

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17.            Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

18.            Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

19.            Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

20.            Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

21.            Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

22.            Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

23.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Parent Guarantors, the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Parent Guarantors, the Issuer or any Subsidiary Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

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24.            Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

25.            Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

26.            ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

27.            Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

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ASSIGNMENT FORM

 

To assign this Note fill in the form below:

 

I or we assign and transfer this Note to

 

(Print or type assignee’s name, address and zip code)

 

(Insert assignee’s social security or tax I.D. No.)

 

and irrevocably appoint                                  agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

 

Date:_______________ Your Signature______________________:

 

Sign exactly as your name appears on the other side of this Note.

 

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OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date:____________

 

Your Signature:_____________

(Sign exactly as your name appears on the other side of this Note)

 

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EXHIBIT B-2

TO THE INDENTURE

 

[FORM OF FACE OF DEFINITIVE NOTE]

 

THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

[Rule 144A Securities Legend]

 

B-16

 

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-17

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

 

[Definitive Securities Legend]

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER SHALL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

B-18

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

0.50% SENIOR NOTE DUE 2029

 

Common Code:____________

 

ISIN:____________

 

No.______________________________________________________________________ €___________

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay €__________to __________ or registered assigns upon surrender hereof the principal sum of__________ Euros (€__________), on September 22, 2029.

 

Interest Payment Dates: September 22 of each year, commencing September 22, 2022.

 

Record Dates: September 8 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

B-19

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
  By:  
  Name:  
  Title:  
   
  By:  
  Name:    
  Title:  

 

This is one of the Notes referred to  
in the within-mentioned Indenture:  
   
Deutsche Bank Luxembourg S.A.,  
as Authenticating Agent for  
DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee  
   
By:            
Name:      
Title:    
     
Dated:      

 

B-20

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

1.00% SENIOR NOTE DUE 2033

 

1.            Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2033 Notes will be payable annually in arrears on September 22 of each year, commencing September 22, 2022. The Issuer will make each interest payment to the Holders of record at the close of business on the immediately preceding September 8. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of Euroclear and Clearstream, as applicable. Interest on the 2033 Notes will accrue at the rate of 1.00% per annum on the aggregate nominal amount of the 2033 Notes outstanding. Interest accruing on all 2033 Notes then outstanding shall be payable in cash. Interest on the 2033 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid or duly provided for on the 2033 Notes (or September 22, 2021 if no interest has been paid on the 2033 Notes), to but excluding the next scheduled interest payment date, pursuant to the convention referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

2.            Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            withholding or deduction imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

B-21

 

 

(2)            any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)            except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)            any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

(7)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

B-22

 

 

(8)            any Taxes imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or

 

(9)            any combination of clauses (1) through (8) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (9) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.            Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in euros. With respect to payments in euros, if (i) a Holder has given wire transfer instructions to the Issuer and the Paying Agent in writing, (ii) the Paying Agent has received such written wire transfer instruction at least 15 days prior to the date of the relevant payment and (iii) for so long as the Notes of the relevant series are listed on Euronext Dublin, such holder has also provided such notice to the Paying Agent, then the Issuer will pay all interest, premium and Additional Amounts, if any, on that Holder’s Notes in accordance with those instructions by wire transfer of same day funds to the Paying Agent who in turn will wire such funds to the Holder hereof or to such other Person as the Holder hereof may in writing to the Paying Agent direct. In all other cases, the Issuer may elect to make payments of interest, premium and Additional Amounts, if any, on a Holder’s Notes by check mailed to the Holders at their addresses set forth in the register of Holders. Payments on Notes will be made through the office or agency of the Paying Agent and Registrar for the Notes unless the Issuer elects to make interest payments by check as previously described. If payments are made through the Paying Agent, immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.            Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank AG, London Branch, will act as Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

B-23

 

 

5.            Indenture. The Issuer issued the Notes under an Indenture, dated as of September 22, 2021 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 1.00% Senior Notes due 2033 (the “2033 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

6.            Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.            Optional Redemption. Except as set forth below or under Paragraph 8 and 10, none of the 2033 Notes will be redeemable at the Issuer’s option prior to June 22, 2033.

 

At any time prior to June 22, 2033, the Issuer may redeem the 2033 Notes in whole or in part, at a redemption price equal to the greater of (a) 100% of the principal amount thereof and (b) the present value as of such date of redemption of (i) the redemption price of 100% for such 2033 Note on June 22, 2033, plus (ii) all required interest payments due on such 2033 Note through June 22, 2033 (excluding accrued but unpaid interest to the date of redemption) computed using a discount rate equal to the Bund Rate as of such date of redemption plus 20 basis points calculated by the Issuer, plus accrued and unpaid interest and Additional Amounts, 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).

 

On or after June 22, 2033, the Issuer may redeem the 2033 Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

If and so long as the 2033 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2033 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2033 Notes that will remain outstanding following such redemption.

 

B-24

 

 

If Holders of not less than 80% in aggregate principal amount of the 2033 Notes validly tender and do not withdraw such 2033 Notes in any tender offer, including a Change of Control Offer, and the Issuer, or any Affiliate or third party making a tender offer, including a Change of Control Offer, in lieu of the Issuer purchases all of the 2033 Notes validly tendered and not withdrawn by such Holders, the Issuer or such Affiliate or third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the tender offer, including a Change of Control Offer, to redeem all 2033 Notes that remain outstanding following such purchase at a price in cash equal to 100% of the principal amount of all such 2033 Notes, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the date of redemption.

 

8.            Special Tax Redemption. The Issuer may, at its option, redeem the 2033 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2033 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2033 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2033 Notes would be, required to pay Additional Amounts with respect to the 2033 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2033 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2033 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2033 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2033 Notes.

 

B-25

 

 

9.            Notice of Redemption. Notice of redemption will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of €100,000 may be redeemed only in whole. No Note of €100,000 in aggregate principal amount or less, or other than in an integral multiple of €1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.            Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2033 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to €100,000 in principal amount and integral multiples of €1,000 in excess thereof) of the 2033 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2033 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2033 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

11.            [Intentionally omitted]

 

12.            Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

13.            [Intentionally omitted]

 

14.            [Intentionally omitted]

 

15.            Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of €100,000 and integral multiples of €1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

16.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

B-26

 

 

17.            Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

18.            Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

19.            Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

20.            Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

21.            Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

22.            Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

23.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Parent Guarantors, the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Parent Guarantors, the Issuer or any Subsidiary Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

B-27

 

 

24.            Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

25.            Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

26.            ISINs and Common Codes. The Issuer has caused ISINs and Common Codes to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

27.            Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

B-28

 

 

 

ASSIGNMENT FORM

 

To assign this Note fill in the form below:

 

I or we assign and transfer this Note to

 

(Print or type assignee’s name, address and zip code)

 

(Insert assignee’s social security or tax I.D. No.)

 

and irrevocably appoint                                agent to transfer this Note on the books of the Issuer.

 

The agent may substitute another to act for him.

 

  

Date:_______________ Your Signature:______________________

 

Sign exactly as your name appears on the other side of this Note.

 

B-29

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: €

 

Date:____________

 

Your Signature:___________

(Sign exactly as your name appears on the other side of this Note)

 

B-30

 

 

EXHIBIT C-1

TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM

2029 RULE 144A GLOBAL NOTE TO 2029 REGULATION S GLOBAL NOTE

(TRANSFERS PURSUANT TO SECTION 2.7(B) OF THE INDENTURE)

 

Smurfit Kappa Treasury Unlimited Company

c/o Deutsche Trustee Company Limited, as Trustee

Winchester House

1 Great Winchester Street

London EC2N 2DB

United Kingdom

Attention: Trust & Security Services

 

Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar

2, boulevard Konrad Adenauer

L-1115 Luxembourg

 

Grand Duchy of Luxembourg

 

RE: 0.50% Senior Notes due 2029 (the “2029 Notes”) of Smurfit Kappa Treasury Unlimited Company (the “Issuer”)

 

Reference is hereby made to the Indenture, dated as of September 22, 2021 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.

 

This letter relates to €__________ (being any integral multiple of €1,000 in excess of €100,000) principal amount of 2029 Notes which are evidenced by 2029 Rule 144A Global Notes (ISIN__________; Common Code__________) and held by you on behalf of the Common Safekeeper who in turn is holding an interest therein on behalf of the undersigned (the “Transferor”). The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the 2029 Rule 144A Global Note be transferred or exchanged for an interest in the 2029 Regulation S Global Note (ISIN__________; Common Code__________) in the form of an equal aggregate principal amount of 2029 Notes. If this is a partial transfer, a minimum amount of €100,000 and any integral multiple of €1,000 in excess thereof of the 2029 Rule 144A Global Note will remain outstanding.

 

C-1

 

 

In connection with such request and in respect of such 2029 Notes, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the 2029 Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S under the Securities Act, and accordingly the Transferor further certifies that:

 

(A)          (1) the offer of the 2029 Notes was not made to a person in the United States;

 

(2) either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on our behalf knows that the transaction was prearranged with a buyer in the United States,

 

(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;

 

(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

(5) if the transfer is made prior to the expiration of 40 days after the later of the Issue Date and the last date on which the Issuer or any of its affiliates was the owner of such 2029 Notes (and the Guarantees thereof) (or any predecessor thereto), the transfer was not made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser of the 2029 Notes).

 

OR

 

(B)          such transfer is being made in accordance with Rule 144 under the Securities Act.

 

C-2

 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer and the Initial Purchasers.

 

Dated:____________

 

  [Name of Transferor]
   
  By:      
  Name:    
  Title:  
  Telephone No.:

 

Please print name and address (including zip code number)    
     
     

 

C-3

 

 

EXHIBIT C-2

TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM

2033 RULE 144A GLOBAL NOTE TO 2033 REGULATION S GLOBAL NOTE

(TRANSFERS PURSUANT TO SECTION 2.7(B) OF THE INDENTURE)

 

Smurfit Kappa Treasury Unlimited Company

c/o Deutsche Trustee Company Limited, as Trustee

Winchester House

1 Great Winchester Street

London EC2N 2DB

United Kingdom

Attention: Trust & Security Services

 

Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar

2, boulevard Konrad Adenauer

L-1115 Luxembourg

 

Grand Duchy of Luxembourg

 

RE:         1.00% Senior Notes due 2033 (the “2033 Notes”) of Smurfit Kappa Treasury Unlimited Company (the “Issuer”)

 

Reference is hereby made to the Indenture, dated as of September 22, 2021 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein, Deutsche Trustee Company Limited, as Trustee, Deutsche Bank AG, London Branch, as Paying Agent, and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.

 

This letter relates to €__________ (being any integral multiple of €1,000 in excess of €100,000) principal amount of 2033 Notes which are evidenced by 2033 Rule 144A Global Notes (ISIN__________; Common Code__________) and held by you on behalf of the Common Safekeeper who in turn is holding an interest therein on behalf of the undersigned (the “Transferor”). The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the 2033 Rule 144A Global Note be transferred or exchanged for an interest in the 2033 Regulation S Global Note (ISIN__________; Common Code__________) in the form of an equal aggregate principal amount of 2033 Notes. If this is a partial transfer, a minimum amount of €100,000 and any integral multiple of €1,000 in excess thereof of the 2033 Rule 144A Global Note will remain outstanding.

 

C-4

 

 

In connection with such request and in respect of such 2033 Notes, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the 2033 Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S under the Securities Act, and accordingly the Transferor further certifies that:

 

(A)          (1) the offer of the 2033 Notes was not made to a person in the United States;

 

(2) either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on our behalf knows that the transaction was prearranged with a buyer in the United States,

 

(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;

 

(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

(5) if the transfer is made prior to the expiration of 40 days after the later of the Issue Date and the last date on which the Issuer or any of its affiliates was the owner of such 2033 Notes (and the Guarantees thereof) (or any predecessor thereto), the transfer was not made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser of the 2033 Notes).

 

OR

 

(B)          such transfer is being made in accordance with Rule 144 under the Securities Act.

 

C-5

 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer and the Initial Purchasers.

 

Dated:____________

 

  [Name of Transferor]
   
  By:      
  Name:    
  Title:  
  Telephone No.:

 

Please print name and address (including zip code number)    
     
     

 

C-6

 

 

EXHIBIT D

TO THE INDENTURE

 

FORM OF SUPPLEMENTAL INDENTURE

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of [date], among (i) [subsidiary guarantor] (the “New Guarantor”), a [type of company] organized under the laws of [jurisdiction of organization] with its registered office at [registered office] and a Subsidiary, (ii) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (iii) Deutsche Trustee Company Limited, as Trustee, (iv) Deutsche Bank AG, London Branch, as Paying Agent and (v) Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar.

 

WITNESSETH:

 

WHEREAS the Issuer has heretofore executed an Indenture dated as of September 22, 2021 (the “Indenture”), providing for the issuance of the Notes by the Issuer;

 

WHEREAS Section 4.8 of the Indenture provides that under certain circumstances the Issuer is required to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture providing for a Guarantee of payment of the Notes by the New Guarantor on the terms and conditions set forth herein; and WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.            Agreement to Guarantee. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.            Agreement to be Bound. The New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

3.            Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

D-1

 

 

4.            Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.            Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

7.            Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.            Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

D-2

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

  [NEW GUARANTOR]
   
  By        
    Name:  
    Title:  

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
UNLIMITED COMPANY    
by its duly authorised attorney    
     
[                      ]    
     
in the presence of [                      ]    
     
    Signature
     
Witness (Signature)    
     
     
Print Address    
     
     
Witness Occupation    

 

D-3

 

 

 

  DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee
   
  By:  
    Name:  
    Title:  
   
  By:  
    Name:    
    Title:  

 

D-4

 

 

EXHIBIT E

TO THE INDENTURE

 

New Safekeeping Structure Duties

 

The Issuer and each Agent will comply with the following provisions:

 

1.The Paying Agent will inform each of Euroclear and Clearstream (the “ICSDs”), through the common service provider appointed by the ICSDs to service the Notes (the “CSP”), of the initial issue outstanding amount (and as subsequently marked up or down in accordance with the following provisions, the “IOA”) for the Notes on or prior to the closing date.

 

2.The Issuer authorizes and instructs the Paying Agent to (i) cause interests in a Global Note to be exchanged for Definitive Registered Notes in accordance with the terms of this Indenture and (ii) instruct the ICSDs to make appropriate entries in their records to reflect such exchanges from time to time.

 

3.Upon the issuance of a subsequent tranche or any additional series of Notes under this Indenture in accordance with its terms, the Paying Agent, on behalf of the Issuer, will instruct the ICSDs to make appropriate entries in their records to reflect the increased outstanding aggregate principal amount of the relevant Notes or additional series of Notes.

 

4.If any event occurs that requires a mark up or mark down of the records which an ICSD holds for its customers to reflect such customers’ interest in the Notes, the Paying Agent will (to the extent known to it) promptly provide details of the amount of such mark up or mark down, together with a description of the event that requires it, to the ICSDs (through the CSP) to ensure that the records of the ICSDs reflecting the IOA of the Notes remain at all times accurate.

 

5.The Paying Agent will at least once every month perform a reconciliation process with the ICSDs (through the CSP) with respect to the IOA for the Notes and will promptly inform the ICSDs (through the CSP) of any discrepancies.

 

6.The Paying Agent will promptly assist the ICSDs (through the CSP) in resolving any discrepancy identified in the records reflecting the IOA of the Notes.

 

7.The Paying Agent will promptly provide to the ICSDs (through the CSP) details of all amounts paid by it under the Notes.

 

8.The Paying Agent will (to the extent known to it) promptly provide to the ICSDs (through the CSP) notice of any changes to the Notes that will affect the amount of, or date for, any payment due under the Notes.

 

9.The Paying Agent will (to the extent known to it) promptly provide to the ICSDs (through the CSP) copies of all information that is given to the holders of the Notes.

 

10.The Paying Agent will promptly pass on to the Issuer all communications it receives from the ICSDs directly or through the CSP relating to the Notes.

 

11.The Paying Agent will (to the extent known to it) promptly notify the ICSDs (through the CSP) of any failure by the Issuer to make any payment due under the Notes when due.

 

E-1

 

Exhibit 4.13

 

Execution Version

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY,
as Issuer

 

SMURFIT KAPPA GROUP PLC,
SMURFIT KAPPA INVESTMENTS LIMITED,
SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY,
each as a Parent Guarantor

 

SMURFIT INTERNATIONAL B.V.,
SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY,
each as a Subsidiary Guarantor

 

and

 

DEUTSCHE TRUSTEE COMPANY LIMITED,
as Trustee

 

______________________________________

 

FIRST SUPPLEMENTAL INDENTURE

 

Dated as of October 5, 2023

 

to

 

INDENTURE

 

Dated as of September 22, 2021

 

______________________________________

 

0.500% Senior Notes due 2029
1.000% Senior Notes due 2033

 

 

 

 

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of October 5, 2023, among (i) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as issuer (the “Issuer”), (ii) Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as parent guarantor (“SKG”), (iii) Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as parent guarantor (“SKI”), (iv) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as parent guarantor (“SKA”, and together with SKG and SKI, the “Parent Guarantors”), (v) Smurfit International B.V., a private limited company incorporated under the laws of Netherlands and having its registered office at Warandelaan 2, 4904 PC Oosterhout, the Netherlands as subsidiary guarantor (“SIB”), (vi) Smurfit Kappa Treasury Funding Designated Activity Company, a designated activity company limited by shares incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland as subsidiary guarantor (“SKD”, and together with SIB, the “Subsidiary Guarantors”, and together with the Parent Guarantors, the “Guarantors”) and (vii) Deutsche Trustee Company Limited, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS, among others, the Issuer, the Trustee and the Guarantors have executed and delivered an indenture dated as of September 22, 2021 (the “Base Indenture”, as amended and supplemented by this Supplemental Indenture, and as the same may be further amended, supplemented or modified from time to time, the “Indenture”), providing for the issuance by the Issuer of: (i) €500,000,000 aggregate principal amount of its 0.500% Senior Notes due 2029 (the “2029 Notes”) and (ii) €500,000,000 aggregate principal amount of its 1.000% Senior Notes due 2033 (the “2033 Notes”, and together with the 2029 Notes, the “Notes”);

 

WHEREAS, the parties hereto have agreed to make certain modifications to the Base Indenture with respect to the Notes subject to the terms and conditions set forth herein;

 

WHEREAS, Section 9.2 (With Consent of Holders of Notes) of the Base Indenture provides that the Issuer, the Guarantors and the Trustee may, with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes of each series, amend the Indenture subject to certain limitations set forth in the Indenture;

 

WHEREAS, the Issuer solicited consents from Holders of the Notes pursuant to the consent solicitation statement dated September 27, 2023 (the “Consent Solicitation Statement”) to certain proposed amendments to the Base Indenture as contained herein upon the terms and subject to the conditions set forth therein, which consents were received: (i) for the 2029 Notes on October 5, 2023 and (ii) for the 2033 Notes on October 5, 2023;

 

WHEREAS, the Issuer has requested that the Trustee execute and deliver this Supplemental Indenture and for this purpose has delivered to the Trustee (i) evidence that the Required Consents (as defined in the Consent Solicitation Statement) with respect to each series of Notes to effect the amendments contained herein have been duly and validly received by the Issuer and (ii) the Officers’ Certificate and Opinion of Counsel as required by the terms of the Indenture;

 

2

 

 

WHEREAS, this Supplemental Indenture shall become effective and operative upon the date hereof (the “Effective Time”);

 

WHEREAS, Section 9.3 (Revocation and Effect of Consents) of the Base Indenture provides that, when a supplemental indenture becomes effective in accordance with its terms, it thereafter binds every Holder, including any subsequent Holder, of the relevant series of Notes;

 

WHEREAS, this Supplemental Indenture is being entered into pursuant to Sections 9.2 (With Consent of Holders of Notes) and 9.5 (Trustee to Sign Amendments, etc.) of the Base Indenture;

 

AND WHEREAS, all acts and things necessary to make this Supplemental Indenture a valid agreement according to its terms have been done and performed, and the execution of this Supplemental Indenture and the amendments to the Base Indenture as provided herein has been duly authorized in all respects;

 

NOW THEREFORE, in consideration of the premises, and for the purpose of setting forth the amendments to the Base Indenture as provided herein, each of the Issuer and the Guarantors covenants and agrees with the Trustee as follows:

 

ARTICLE 1

Defined Terms

 

Section 1.01           Definition of Base Indenture. In this Supplemental Indenture, “Base Indenture” has the meaning set forth in the recitals above.

 

Section 1.02           Defined Terms. Capitalized terms used in this Supplemental Indenture without definition shall have the meanings assigned to them in the Indenture or in the preamble or recitals thereto. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

 

ARTICLE 2

Amendments to the Base Indenture

 

Section 2.01          Amendments to Section 1.1 (Definitions). Subject to Section 3.01 (Effectiveness) hereof, Section 1.1 (Definitions) of the Base Indenture is hereby amended and restated to (i) replace each of the definitions of “Change of Control” and “IFRS” to read in its entirety as provided below; and (ii) include new definitions of “Merger Parent Entity”, “Merger Transaction”, “Transaction Agreement” and “U.S. GAAP” as provided below:

 

(a)            “Change of Control” means the occurrence of any of the following:

 

(1)               the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or transfer of SKA’s Voting Stock), in one or a series of related transactions, of all or substantially all of the properties or assets of SKA and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than another Parent Guarantor;

 

3

 

 

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

 

(3)                the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) other than a Parent Guarantor or other direct or indirect parent company that is wholly owned by a Parent Guarantor becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of SKA, measured by voting power rather than number of shares.

 

Notwithstanding the foregoing, the consummation of the Merger Transaction (including the direct or indirect acquisition of SKG by the Merger Parent Entity) pursuant to the terms of the Transaction Agreement, shall not constitute a Change of Control.”

 

(b)           “IFRS” means International Financial Reporting Standards as adopted by the European Union, International Financial Reporting Interpretations Committee as in effect as of the date of this Indenture; provided, however, that all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with IFRS as in effect on the date of such report or other financial information; provided, further, that at any time after completion of the Merger Transaction, the Issuer may elect irrevocably, and notify the Trustee and the Holders of such election, that IFRS shall mean U.S. GAAP as in effect on the date of such election; provided, however, that following such election all reports and other financial information provided by the Issuer to the Holders and/or the Trustee shall be prepared in accordance with U.S. GAAP as in effect on the date of such report or other financial information. All ratios and computations based on IFRS contained in this Indenture will be computed in conformity with IFRS or U.S. GAAP, as applicable.”

 

(c)            “Merger Parent Entity” means Cepheidway Limited, a private company limited by shares incorporated under the laws of Ireland (to be renamed and re-gistered as Smurfit WestRock plc, a public company limited by shares incorporated under the laws of Ireland), or such other entity, in each case, which will become the direct or indirect shareholder of SKG in connection with the Merger Transaction and which is expected to be listed on the New York Stock Exchange and/or the London Stock Exchange.”

 

(d)           “Merger Transaction” means the business combination of SKG group and WestRock Company, a Delaware corporation (“WestRock”) to be consummated pursuant to the Transaction Agreement.”

 

4

 

 

(e)           “Transaction Agreement” means the transaction agreement dated September 12, 2023, by and among, inter alios, SKG and WestRock, as amended, supplemented or modified from time to time.”

 

(f)             “U.S. GAAP” means generally accepted accounting principles in the United States as set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States.”

 

Section 2.02           Corresponding Amendments. With effect on and from the date hereof, each Global Note shall be deemed supplemented, modified and amended in such manner as necessary to make the terms of such Global Note consistent with the terms of the Indenture, as amended by this Supplemental Indenture. To the extent of any conflict between the terms of the Notes and the terms of the Indenture, as amended by this Supplemental Indenture, the terms of the Indenture, as amended by this Supplemental Indenture, shall govern and be controlling.

 

ARTICLE 3

Miscellaneous

 

Section 3.01           Effectiveness. The provisions of this Supplemental Indenture shall be effective and operative upon the Effective Time.

 

Section 3.02          Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.

 

Section 3.03           Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

Section 3.04           Severability. In case any one or more of the provisions in this Supplemental Indenture shall be held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

Section 3.05           Ratification of Base Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Base Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

Section 3.06         Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

5

 

 

Section 3.07          Incorporation by Reference. Section 11.8 (Submission to Jurisdiction; Appointment of Agent for Service) of the Base Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

Section 3.08           Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof.

 

Section 3.09          Successors. All covenants and agreements of the Issuer, the Guarantors and the Trustee in this Supplemental Indenture shall bind their respective successors and assigns.

 

Section 3.10           Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

(Signature pages follow)

 

6

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY, as Issuer
   
  By: /s/ Emer Murnane
    Name: Emer Murnane
    Title: Director
   
  SMURFIT KAPPA GROUP PLC, as a Parent Guarantor
   
  By: /s/ Kenneth Bowles
    Name: Kenneth Bowles
    Title: Director
   
  SMURFIT KAPPA INVESTMENTS LIMITED, as a Parent Guarantor
   
  By: /s/ Kenneth Bowles
    Name: Kenneth Bowles
    Title: Director
   
  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY, as a Parent Guarantor
   
  By: /s/ Emer Murnane
    Name: Emer Murnane
    Title: Director

 

(Signature page to Supplemental Indenture – 2029/2033 Notes)

 

 

 

 

   
  SMURFIT INTERNATIONAL B.V., as a Subsidiary Guarantor
   
  By: /s/ PJA Koelewijn
    Name: PJA Koelewijn
    Title: Director
   
  SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY, as a Subsidiary Guarantor
   
  By: /s/ Emer Murnane
    Name: Emer Murnane
    Title: Director

 

(Signature page to Supplemental Indenture – 2029/2033 Notes)

 

 

 

 

   
  DEUTSCHE TRUSTEE COMPANY LIMITED, as Trustee
   
  By: /s/ Robert Bebb
    Name: Robert Bebb
    Title: Associate Director
   
   
  By: /s/ Paul Berwick
    Name: Paul Berwick
    Title: Associate Director

 

(Signature page to Supplemental Indenture — 2029/2033 Notes)

 

 

 

 

 

 

 

 

Exhibit 4.14

 

SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of July 5, 2024, among (i) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland (the “Issuer”); (ii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors”); and (iii) Deutsche Trustee Company Limited, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS the Issuer, the guarantors party thereto, the Trustee, Deutsche Bank AG, London Branch, as Paying Agent and Deutsche Bank Luxembourg S.A., as Transfer Agent and Registrar, have heretofore executed an Indenture, dated as of September 22, 2021 (as amended or supplemented, the “Indenture”), providing for the issuance of 0.50% Senior Notes due 2029 and 1.00% Senior Notes due 2033 (together, the “Notes”) by the Issuer;

 

WHERAS Smurfit Kappa Group plc, an Irish public limited company (“SKG”), the indirect parent of the Issuer, has entered into a transaction agreement, dated as of September 12, 2023, with WestRock Company, a Delaware corporation (“WestRock”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Smurfit WestRock (the “Transaction Agreement”);

 

WHEREAS, pursuant to the terms of the Transaction Agreement, the parties thereto agreed to consummate a combination (the “Combination”), following which Smurfit WestRock will be the parent of each of SKG and WestRock;

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all of the other applicable provisions of the Indenture and the Notes (the “New Guarantees”); and

 

WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer, the New Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.            Agreement to Guarantee. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.            Agreement to be Bound. Each New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

1

 

 

3.            Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

4.            Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.            Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart signature page by facsimile, e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

7.            Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.            Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

[Signature pages follow]

 

2

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

Issuer

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2021 Indenture]

 

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT WESTROCK PLC

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2021 Indenture]

 

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION

 

By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2021 Indenture]

 

 

 

 

WESTROCK COMPANY

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2021 Indenture]

 

 

 

 

WRKCO INC.

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2021 Indenture]

 

 

 

 

WESTROCK MWV, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2021 Indenture]

 

 

 

 

WESTROCK RKT, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2021 Indenture]

 

 

 

 

  Deutsche Trustee Company Limited, as Trustee
   
  By: /s/J. Woodger
    Name: J. Woodger
    Title: Associate Director
     
  By: /s/ Lauren Taylor
    Name: Lauren Taylor
    Title: Associate Director

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2021 Indenture]

 

 

 

 

Exhibit 4.15

 

EXECUTION VERSION

 

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY,

 

as Issuer,

 

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY,
as a Parent Guarantor,

 

SMURFIT KAPPA INVESTMENTS LIMITED,
as a Parent Guarantor,

 

SMURFIT KAPPA GROUP PLC,
as a Parent Guarantor,

 

the Subsidiary Guarantors named herein,

 

and

 

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee, Paying Agent, Transfer Agent and Registrar

 

 

 

INDENTURE

 

Dated as of April 3, 2024

 

 

 

5.200% Senior Notes due 2030

 

5.438% Senior Notes due 2034

 

5.777% Senior Notes due 2054

 

 

 

 

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

Reconciliation and tie between Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and Indenture.

 

Trust Indenture   Act Section   Indenture Section 
§310   (a)(1)   7.9 
    (a)(2)   7.9 
    (a)(3)   Not Applicable 
    (a)(4)   Not Applicable 
        (b) 7.3, 7.7, 7.9, 7.10 
§311   (a)   7.11 
    (b)   7.9, 7.11 
§312   (a)   2.5 
    (b)    11.2 
    (c)    11.2 
§313   (a)   7.14 
    (b)   7.14 
    (c)   7.14 
    (d)   7.14 
§314   (a)   4.3 
    (a)(4)   4.4 
    (b)    Not Applicable 
    (c)(1)   11.3(1) 
    (c)(2)   11.3(2) 
    (c)(3)   Not Applicable 
    (d)    Not Applicable 
    (e)   11.4 
§315   (a)   7.1(b) 
    (b)   7.5 
    (e)   7.1(a) 
    (f)   7.1(c) 
    (d)(1)   7.1(c)(1) 
    (d)(2)   7.1(c)(2) 
    (d)(3)   7.1(c)(3) 
    (g)    6.14 
§316   (a)(1)(A)   6.8 
    (a)(1)(B)   6.7 
    (a)(2)   Not Applicable 
    (a)(last sentence)   2.10 
    (b)    6.16 
    (c)    9.3(b) 
§317   (a)(1)   6.10 
    (a)(2)   6.11 
    (b)   2.3, 2.4 
§318   (a)   1.2 

 

NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

 

i 

 

 

TABLE OF CONTENTS

 

  Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 1
   
  SECTION 1.1. Definitions 1
  SECTION 1.2. Incorporation by Reference of TIA 17
  SECTION 1.3. Rules of Construction 17
     
ARTICLE II THE NOTES 18
   
  SECTION 2.1. Form and Dating 18
  SECTION 2.2. Execution and Authentication 19
  SECTION 2.3. Registrar and Paying Agent 20
  SECTION 2.4. Paying Agent To Hold Money 21
  SECTION 2.5. List of Holders 21
  SECTION 2.6. Book-Entry Provisions for Global Notes 22
  SECTION 2.7. Registration of Transfer and Exchange 23
  SECTION 2.8. Replacement Notes 27
  SECTION 2.9. Outstanding Notes 28
  SECTION 2.10. Treasury Notes 28
  SECTION 2.11. Temporary Notes 28
  SECTION 2.12. Cancellation 28
  SECTION 2.13. Defaulted Interest 29
  SECTION 2.14. CUSIPs and ISINs 29
  SECTION 2.15. Deposit of Moneys 29
  SECTION 2.16. Certain Matters Relating to Global Notes 30
  SECTION 2.17. Interest 30
  SECTION 2.18. Exchange Offer 30
  SECTION 2.19. Additional Interest Under Registration Rights Agreement 31
     
ARTICLE III REDEMPTION 31
   
  SECTION 3.1. Optional Redemption 31
  SECTION 3.2. Notices to Trustee 31
  SECTION 3.3. Selection of Notes to Be Redeemed 31
  SECTION 3.4. Notice of Redemption 32
  SECTION 3.5. Effect of Notice of Redemption 33
  SECTION 3.6. Deposit of Redemption Price 33
  SECTION 3.7. Notes Redeemed in Part 33
  SECTION 3.8. Special Mandatory Redemption 34
     
ARTICLE IV COVENANTS 35
   
  SECTION 4.1. Payment of Notes 35
  SECTION 4.2. Maintenance of Office or Agency 35
  SECTION 4.3. Reports by the Issuer 35
  SECTION 4.4. Statements as to Compliance 36
  SECTION 4.5. [Intentionally omitted] 36
  SECTION 4.6. [Intentionally omitted] 36
  SECTION 4.7. [Intentionally omitted] 36
  SECTION 4.8. Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries 36

 

ii 

 

 

  SECTION 4.9. Furnishing Guarantees 37
  SECTION 4.10. Negative Pledge 37
  SECTION 4.11. [Intentionally omitted] 37
  SECTION 4.12. [Intentionally omitted] 37
  SECTION 4.13. [Intentionally omitted] 37
  SECTION 4.14. [Intentionally omitted] 37
  SECTION 4.15. [Intentionally omitted] 37
  SECTION 4.16. [Intentionally omitted] 37
  SECTION 4.17. [Intentionally omitted] 37
  SECTION 4.18. [Intentionally omitted] 37
  SECTION 4.19. Change of Control Repurchase Event 37
  SECTION 4.20. Additional Amounts 39
  SECTION 4.21. Payment of Non-Income Taxes and Similar Charges 40
     
ARTICLE V SUCCESSOR CORPORATION 40
   
  SECTION 5.1. Consolidation, Merger or Sale of Assets 40
  SECTION 5.2. Successor Corporation Substituted 42
     
ARTICLE VI DEFAULT AND REMEDIES 42
   
  SECTION 6.1. Events of Default 42
  SECTION 6.2. Acceleration 43
  SECTION 6.3. Other Remedies 44
  SECTION 6.4. The Trustee May Enforce Claims Without Possession of Securities 44
  SECTION 6.5. Rights and Remedies Cumulative 44
  SECTION 6.6. Delay or Omission Not Waiver 44
  SECTION 6.7. Waiver of Past Defaults 44
  SECTION 6.8. Control by Majority 45
  SECTION 6.9. Limitation on Suits 45
  SECTION 6.10. Collection Suit by Trustee 45
  SECTION 6.11. Trustee May File Proofs of Claim 46
  SECTION 6.12. Priorities 46
  SECTION 6.13. Restoration of Rights and Remedies 46
  SECTION 6.14. Undertaking for Costs 47
  SECTION 6.15. Additional Payments 47
  SECTION 6.16. Rights of Holders To Receive Payment 47
     
ARTICLE VII TRUSTEE 47
   
  SECTION 7.1. Duties of Trustee 47
  SECTION 7.2. Rights of Trustee 49
  SECTION 7.3. Individual Rights of Trustee 50
  SECTION 7.4. Trustee’s Disclaimer 50
  SECTION 7.5. Notice of Default 50
  SECTION 7.6. Compensation and Indemnity 50
  SECTION 7.7. Replacement of Trustee 52
  SECTION 7.8. Successor Trustee by Merger, etc. 53
  SECTION 7.9. Eligibility; Disqualification 53
  SECTION 7.10. Disqualification; Conflicting Interests 53
  SECTION 7.11. Preferential Collection of Claims Against Issuer 53
  SECTION 7.12. Force Majeure 53
  SECTION 7.13. Consequential Loss 53
  SECTION 7.14. Reports by Trustee to Holders 53

 

iii 

 

 

ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE 54
   
  SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance 54
  SECTION 8.2. Legal Defeasance and Discharge 54
  SECTION 8.3. Covenant Defeasance 55
  SECTION 8.4. Conditions to Legal or Covenant Defeasance 55
  SECTION 8.5. Satisfaction and Discharge of Indenture 56
  SECTION 8.6. Survival of Certain Obligations 57
  SECTION 8.7. Acknowledgment of Discharge by Trustee 57
  SECTION 8.8. Application of Trust Moneys 57
  SECTION 8.9. Repayment to the Issuer; Unclaimed Money 58
  SECTION 8.10. Reinstatement 58
     
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS 58
   
  SECTION 9.1. Without Consent of Holders of Notes 58
  SECTION 9.2. With Consent of Holders of Notes 60
  SECTION 9.3. Revocation and Effect of Consents 61
  SECTION 9.4. Notation on or Exchange of Notes 62
  SECTION 9.5. Trustee to Sign Amendments, etc. 62
     
ARTICLE X GUARANTEES 62
   
  SECTION 10.1. Guarantee 62
  SECTION 10.2. Limitation on Liability 64
  SECTION 10.3. Successors and Assigns 64
  SECTION 10.4. No Waiver 64
  SECTION 10.5. Modification 64
  SECTION 10.6. Release of Guarantor 65
  SECTION 10.7. Execution of Supplemental Indenture for Future Guarantors 65
     
ARTICLE XI MISCELLANEOUS 66
   
  SECTION 11.1. Notices 66
  SECTION 11.2. Communications by Holders with Other Holders 67
  SECTION 11.3. Certificate and Opinion as to Conditions Precedent 67
  SECTION 11.4. Statements Required in Certificate or Opinion 68
  SECTION 11.5. Rules by Trustee, Paying Agent, Registrar, Transfer Agent 68
  SECTION 11.6. Legal Holidays 69
  SECTION 11.7. Governing Law 69
  SECTION 11.8. Submission to Jurisdiction; Appointment of Agent for Service 69
  SECTION 11.9. No Adverse Interpretation of Other Agreements 69
  SECTION 11.10. No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders 69
  SECTION 11.11. Currency Indemnity 70
  SECTION 11.12. Currency Calculation 70
  SECTION 11.13. Information 70
  SECTION 11.14. Successors 70
  SECTION 11.15. Counterpart Originals 71
  SECTION 11.16. Severability 71
  SECTION 11.17. Table of Contents, Headings, etc. 71
  SECTION 11.18. Patriot Act 71

 

iv 

 

 

SCHEDULES
 
Schedule A - Subsidiary Guarantors
Schedule B - Post-Completion Additional Guarantors
   
EXHIBITS
 
Exhibit A-1 - Form of 2030 Global Note
Exhibit A-2 - Form of 2034 Global Note
Exhibit A-3 - Form of 2054 Global Note
Exhibit B-1 - Form of 2030 Definitive Note
Exhibit B-2 - Form of 2034 Definitive Note
Exhibit B-3 - Form of 2054 Definitive Note
Exhibit C-1 - Form of Transfer Certificate for Transfer from 2030 Rule 144A Global Note to 2030 Regulation S Global Note
Exhibit C-2 - Form of Transfer Certificate for Transfer from 2034 Rule 144A Global Note to 2034 Regulation S Global Note
Exhibit C-3 - Form of Transfer Certificate for Transfer from 2054 Rule 144A Global Note to 2054 Regulation S Global Note
Exhibit D - Form of Supplemental Indenture

 

v 

 

 

INDENTURE, dated as of April 3, 2024, among: (i) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), (ii) Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKA”), (iii)  Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKIL”), (iv)   Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (“SKG” and, together with SKA and SKIL, the “Parent Guarantors”), (v) the Subsidiary Guarantors named in Schedule A hereto and (vi) Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar.

 

The Issuer has duly authorized the creation and issuance of its 5.200% Senior Notes due 2030 issued on the date hereof (the “Original 2030 Notes”), the creation and issuance of its 5.438% Senior Notes due 2034 issued on the date hereof (the “Original 2034 Notes”) and the creation and issuance of its 5.777% Senior Notes due 2054 issued on the date hereof (the “Original 2054 Notes” and, together with the Original 2030 Notes and the Original 2034 Notes, the “Original Notes”) and the Issuer may issue, from time to time after the date hereof, an unlimited principal amount of additional securities having identical terms and conditions as any series of the Original 2030 Notes (the “Additional 2030 Notes” and, together with the Original 2030 Notes, the “2030 Notes”), any series of the Original 2034 Notes (the “Additional 2034 Notes” and, together with the Original 2034 Notes, the “2034 Notes”) or any series of the Original 2054 Notes (the “Additional 2054 Notes” and, together with the Original 2054 Notes, the “2054 Notes”); and, to provide therefor, the Issuer has duly authorized the execution and delivery of this Indenture. The Additional 2030 Notes, the Additional 2034 Notes and the Additional 2054 Notes, collectively, shall be referred to herein as the “Additional Notes”. The Original Notes, any Additional Notes and any Exchange Notes (as defined below) collectively shall be referred to herein as the “Notes”. The aggregate principal amount of 2030 Notes that shall be issued on the date hereof equals $750 million, the aggregate principal amount of 2034 Notes that shall be issued on the date hereof equals $1,000 million and the aggregate principal amount of 2054 Notes that shall be issued on the date hereof equals $1,000 million.

 

Each party hereto agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes:

 

ARTICLE I

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.1. Definitions. For purposes of this Indenture, unless otherwise specifically indicated herein, the term “consolidated” with respect to any Person refers to such Person consolidated with its Subsidiaries. In addition, for purposes of the following definitions and this Indenture generally, all ratios and computations based on IFRS shall be made in accordance with IFRS and shall be based upon the consolidated financial statements of the Ultimate Parent and its subsidiaries prepared in conformity with IFRS. As used in this Indenture, the following terms shall have the following meanings:

 

1

 

 

 

“2030 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“2034 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“2054 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Additional 2030 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Additional 2034 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Additional 2054 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Additional Amounts” shall have the meaning set forth in Section 4.20(b).

 

“Additional Interest” means all amounts, if any, payable pursuant to Section 2(c) of the Registration Rights Agreement. Unless the context otherwise requires, all references in this Indenture to interest includes Additional Interest, if any. Any express reference to Additional Interest in this Indenture shall not be construed as excluding Additional Interest in any other text where no such express reference is made.

 

“Additional Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control”, as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling”, “controlled by” and “under common control with” shall have correlative meanings.

 

“Agent” means any Paying Agent, Registrar or Transfer Agent.

 

“Agent Members” shall have the meaning set forth in Section 2.16(a).

 

“Applicable Basis Points” means (i) with respect to the 2030 Notes, 15 basis points, (ii) with respect to the 2034 Notes, 20 basis points and (iii) with respect to the 2054 Notes, 25 basis points.

 

“Attributable Debt” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with IFRS.

 

“Authenticating Agent” shall have the meaning set forth in Section 2.2.

 

“Authorized Agent” shall have the meaning set forth in Section 11.8.

 

2

 

 

“Bankruptcy Law” means (i) for purposes of the Issuer, any bankruptcy, insolvency, winding-up or other similar statute (including the relevant provisions of the Irish Companies Act 2014 and the examinership court protection procedure), regulation or provision of any jurisdiction in which the Issuer is organized or conducting business and (ii) for purposes of the Trustee and the Holders, Title 11, U.S. Code or any similar United States Federal, state or foreign law for the relief of creditors.

 

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” shall have a corresponding meaning.

 

“Board of Directors” means: (1) with respect to a corporation, the board of directors (or analogous governing body) of the corporation or any committee thereof duly authorized to act on behalf of such board; (2) with respect to a partnership, the board of directors of the general partner of the partnership; (3) with respect to any limited liability company, the managing member or members (or analogous governing body) or any controlling committee of managing members thereof; and (4) with respect to any other Person, the board or committee of such Person serving a similar function.

 

“Board Resolution” means a duly authorized resolution of the Board of Directors of the Issuer certified by an Officer and delivered to the Trustee.

 

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City, Dublin or London.

 

“Capital Stock” means:

 

(1)            in the case of a corporation, corporate stock;

 

(2)            in the case of a company, shares of such company;

 

(3)            in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(4)            in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

(5)            any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person;

 

provided that debt securities convertible into interests specified in (1) through (5) above shall not be deemed “Capital Stock.”

 

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“Change in Tax Law” shall have the meaning set forth in Paragraph 8 of any Note.

 

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

 

(1)            the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or transfer of the Covenant Parent’s Voting Stock), in one or a series of related transactions, of all or substantially all of the properties or assets of the Covenant Parent and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than, prior to the Post-Completion Accession Date, another Parent Guarantor;

 

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

 

(3)            the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) other than, prior to the Post-Completion Accession Date, a Parent Guarantor or other direct or indirect parent company that is wholly owned by a Parent Guarantor becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Covenant Parent, measured by voting power rather than number of shares.

 

Notwithstanding the foregoing, the Combination will not be deemed to involve a Change of Control and any other transaction will not be deemed to involve a Change of Control if (i) the Ultimate Parent immediately prior to such transaction becomes a direct or indirect wholly owned subsidiary of another Person and (ii)(A) the Beneficial Owners of the Voting Stock of such other Person immediately following that transaction are substantially the same as the holders of the Voting Stock of the Ultimate Parent immediately prior to that transaction or (B) immediately following that transaction, no Person is the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of such Person, measured by voting power rather than number of shares.

 

“Change of Control Offer” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Payment Date” shall have the meaning set forth in Section 4.19(a).

 

“Change of Control Repurchase Event” means a Change of Control and a Rating Event.

 

“Clearing Agency” means DTC or its successor acting directly or through a custodian, nominee or depository.

 

“Code” means the United States Internal Revenue Code of 1986, as amended.

 

“Combination” means (i) the acquisition of SKG by Smurfit WestRock by means of a scheme of arrangement under the Companies Act 2014 of Ireland (as amended) and (ii) the merger of Merger Sub with and into WestRock.

 

“Commission” means the United States Securities and Exchange Commission, or any successor entity thereof from time to time.

 

4

 

 

“Consolidated Net Tangible Assets” means, as of any date of determination, the total amount of all assets of the Ultimate Parent and its Subsidiaries, determined on a consolidated basis in accordance with IFRS, as of the end of the most recent fiscal quarter for which the Ultimate Parent’s financial statements are available (but which may give pro forma effect to the acquisition of any assets or liabilities following the end of such recent fiscal quarter up to and including the determination date), less the sum of:

 

(1)            the Ultimate Parent’s consolidated current liabilities as of such quarter end (other than (a) short term borrowings and (b) long term debt due within one year), determined on a consolidated basis in accordance with IFRS; and

 

(2)            the Ultimate Parent’s consolidated assets that are properly classified as intangible assets as of such quarter end, determined on a consolidated basis in accordance with IFRS.

 

“Consolidated Total Assets” means, as of any date of determination, the total amount of all assets of the Ultimate Parent and its Subsidiaries, determined on a consolidated basis in accordance with IFRS, as of the end of the most recent fiscal quarter for which the Ultimate Parent’s financial statements are available.

 

“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any dividend or other obligation that, in each case, does not constitute Indebtedness (“primary obligation”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent.

 

“Covenant Defeasance” shall have the meaning set forth in Section 8.3.

 

“Covenant Parent” means, at the Issue Date, SKA and, from the Post-Completion Accession Date, Smurfit WestRock.

 

“Covenant Parent Successor” shall have the meaning set forth in Section 5.1.

 

“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

“Default Interest Payment Date” shall have the meaning set forth in Section 2.13.

 

“Definitive Notes” means Notes in definitive registered form substantially in the form of Exhibits B-1, B-2 and B-3 hereto.

 

“DTC” means The Depository Trust Company.

 

“Euronext Dublin” shall have the meaning set forth in Section 2.3.

 

“Event of Default” shall have the meaning set forth in Section 6.1.

 

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

 

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“Exchange Notes” means any notes issued in exchange for the Original Notes or any Additional Notes as contemplated by the Registration Rights Agreement.

 

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

 

“Existing Guarantee Covenant Notes” means the Existing SKA Senior Notes and the €750.0 million in aggregate principal amount outstanding of 1.50% Senior Notes due 2027 issued by the Issuer.

 

“Existing Issuer Senior Notes” means the (i) €750.0 million in aggregate principal amount outstanding of 1.50% Senior Notes due 2027 issued by the Issuer; (ii) €500.0 million in aggregate principal amount outstanding of 0.500% Senior Notes due 2029 issued by the Issuer; and (ii) €500.0 million in aggregate principal amount outstanding of 1.000% Senior Notes due 2033 issued by the Issuer.

 

“Existing Senior Notes” means the Existing SKA Senior Notes and the Existing Issuer Senior Notes.

 

“Existing SKA Senior Notes” means the (i) €250.0 million in aggregate principal amount outstanding of 2.75% Senior Notes due 2025 issued by SKA; and (ii) €1,000.0 million in aggregate principal amount outstanding of 2.875% Senior Notes due 2026 issued by SKA.

 

“Fitch” means Fitch Ratings Inc., and its successors.

 

“GAAP” means generally accepted accounting principles in the Unites States.

 

“Global Notes” means the Regulation S Global Notes, the Rule 144A Global Notes and any Exchange Notes issued in global form.

 

“guarantee” means a guarantee, contingent or otherwise, of all or any part of any Indebtedness (other than by endorsement of negotiable instruments for collection in the ordinary course of business), including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof.

 

“Guarantee” means any guarantee by a Guarantor of the Issuer’s obligations under this Indenture and the Notes pursuant to the terms of this Indenture.

 

“Guarantee Obligations” shall have the meaning set forth in Section 10.1(a).

 

“Guarantor” means the Initial Guarantors, together with any entity that provides a Guarantee after the Issue Date and their respective successors and assigns, in each case, until the Guarantee of such Person has been released in accordance with the provisions of this Indenture.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements; and (2) other similar agreements or arrangements designed to enable such Person to manage fluctuations in interest rates.

 

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

 

“IFRS” means International Financial Reporting Standards as adopted by the European Union, International Financial Reporting Interpretations Committee as in effect as of the date of this Indenture; provided, however, that the Issuer or any Covenant Parent may elect, and notify the Trustee and the Holders of such election, that IFRS shall mean GAAP as in effect on the date of such election; provided, however, that following such election all computations based on IFRS and IFRS concepts contained in this Indenture will be computed in conformity with GAAP and GAAP concepts. Thereafter, the Issuer or any Covenant Parent may, at its option, elect to apply IFRS or GAAP and make all computations based on IFRS or GAAP, as applicable, on the basis of the foregoing provisions of this definition of IFRS. Notwithstanding anything to the contrary in this Indenture, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness.

 

“Indebtedness” means, with respect to any specified Person, any Indebtedness of such Person, whether or not contingent, in respect of:

 

(1)            borrowed money;

 

(2)            bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(3)            banker’s acceptances, letters of credit and similar instruments;

 

(4)            Lease Obligations and Attributable Debt;

 

(5)            the deferred balance of the purchase price of any property which remains unpaid more than one year after such property is acquired, except any such balance that constitutes an accrued expense, a trade payable or a similar current liability; or

 

(6)            any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with IFRS. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person. Notwithstanding the foregoing and for the avoidance of doubt, the term “Indebtedness” shall not include: (1) Contingent Obligations in the ordinary course of business; (2) in connection with the purchase by the Covenant Parent or any of its Subsidiaries of any business, any post closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; and (3) any contingent obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage taxes.

 

7

 

 

The amount of any Indebtedness outstanding as of any date shall be:

 

(1)the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and

 

(2)the principal amount thereof in the case of any other Indebtedness.

 

In addition, Indebtedness of any Person shall include Indebtedness described in the preceding paragraph that would not appear as a liability on the balance sheet of such Person if:

 

(1)such Indebtedness is the obligation of a partnership or joint venture that is not a Subsidiary of such Person (a “Joint Venture”);

 

(2)such Person or a Subsidiary of such Person is a general partner of the Joint Venture (a “General Partner”); and

 

(3)there is recourse, by contract or operation of law, with respect to the payment of such Indebtedness to property or assets of such Person or a Subsidiary of such Person; and then such Indebtedness shall be included in an amount not to exceed:

 

(a)the lesser of (i) the net assets of the General Partner and (ii) the amount of such obligations to the extent that there is recourse, by contract or operation of law, to the property or assets of such Person or a Subsidiary of such Person; or

 

(b)if less than the amount determined pursuant to clause (i) immediately above, the actual amount of such Indebtedness that is recourse to such Person or a Subsidiary of such Person, if the Indebtedness is evidenced by a writing and is for a determinable amount and the related interest expense shall be included in consolidated interest expense to the extent actually paid by the Covenant Parent or its Subsidiaries.

 

“Indenture” means this Indenture, as amended, modified or supplemented from time to time in accordance with the terms hereof.

 

“Initial Guarantors” means (a) the Parent Guarantors and (b) the Subsidiary Guarantors.

 

“Investment Grade” means (a) a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); (b) a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P); and (c) a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch).

 

“Issue Date” means the date on which the Original Notes are issued under this Indenture.

 

“Issuer” means the party named as such in this Indenture until a successor replaces it pursuant to this Indenture and thereafter means such successor.

 

“Issuer Order” means a written order or request signed in the name of the Issuer by (i) two Officers of the Issuer, one of whom must be the Chief Executive Officer, the President, the Chief Financial Officer or the Finance Director of the Issuer or any other Officer so authorized or (ii) two members of the Board of Directors of the Issuer, and delivered to the Trustee.

 

8

 

 

“Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a lease that would at that time be required to be capitalized on a balance sheet in accordance with IFRS.

 

“Legal Defeasance” shall have the meaning set forth in Section 8.2.

 

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement.

 

“Maturity Date” means (i) with respect to the 2030 Notes, January 15, 2030, (ii) with respect to the 2034 Notes, April 3, 2034 and (iii) with respect to the 2054 Notes, April 3, 2054.

 

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

 

“Notes” shall have the meaning set forth in the preamble of this Indenture.

 

“Offering Memorandum” means the Offering Memorandum of the Issuer, dated March 26, 2024, relating to the Original Notes.

 

“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer or the Secretary of the Ultimate Parent, SKG, SKIL or the Issuer, as applicable.

 

“Officers’ Certificate” means a certificate signed by two Officers of the Ultimate Parent, SKG, SKIL or the Issuer, as applicable.

 

“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee.

 

“Original 2030 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Original 2034 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Original 2054 Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Original Notes” shall have the meaning set forth in the preamble to this Indenture.

 

“Other Hedging Agreements” means any foreign exchange contracts, currency swap agreements, futures contract, option contract, commodity futures contract, commodity option, commodity swap, commodity collar agreement, commodity cap agreements or other similar agreements or arrangements designed to enable such Person to manage the fluctuations in currency or commodity values.

 

9

 

 

“Par Call Date” means (i) with respect to the 2030 Notes, December 15, 2029 (the date that is one month prior to the scheduled maturity of the 2030 Notes), (ii) with respect to the 2034 Notes, January 3, 2034 (the date that is three months prior to the scheduled maturity of the 2034 Notes) and (iii) with respect to the 2054 Notes, October 3, 2053 (the date that is six months prior to the scheduled maturity of the 2054 Notes).

 

“Parent Guarantors” means the parties named as such in this Indenture or any successor entity.

 

“Paying Agent” shall have the meaning set forth in Section 2.3.

 

“Payment Default” shall have the meaning set forth in Section 6.1(4)(a).

 

“Payor” means the Issuer or a successor thereof.

 

“Permitted Interest” means any Securitization Lien or other Lien that arises in relation to any securitization or other structured finance transaction where:

 

(1)            the primary source or payment of any obligations of the issuer is linked or otherwise related to cash flow from particular property or assets (or where payment of such obligations is otherwise supported by such property or assets); and

 

(2)            recourse to the issuer in respect of such obligations is conditional on cash flow from such property or assets.

 

“Permitted Liens” means:

 

(1)            Liens created for the benefit of or to secure the Notes or the Guarantees;

 

(2)            Liens in favor of the Covenant Parent or any of its Subsidiaries;

 

(3)            Liens on property or assets or shares of stock of a Person existing at the time such Person is merged with or into or consolidated with the Covenant Parent or any of its Subsidiaries; provided that such Liens were not incurred in contemplation of such merger or consolidation and do not extend to any Principal Property other than such property of the Person merged into or consolidated with the Covenant Parent or any of its Subsidiaries;

 

(4)            Liens on property or assets or shares of stock existing at the time of acquisition thereof by the Covenant Parent or any of its Subsidiaries and purchase money or similar Liens; provided that such Liens were not incurred in contemplation of such acquisition and do not extend to any other property, assets or shares of stock, as applicable;

 

(5)            Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature or arising by operation of law incurred in the ordinary course of business;

 

(6)            Liens to secure certain development, construction, alteration, repair or improvement costs or to secure Indebtedness incurred to provide funds for the reimbursement of funds expended for the foregoing purposes; provided that the Liens securing such costs or Indebtedness shall not extend to any Principal Property other than that being so developed, constructed, altered, repaired or improved;

 

10

 

 

(7)            Liens existing on the date of this Indenture;

 

(8)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith;

 

(9)            statutory mechanics’, workmen’s, materialmen’s, operators’ or similar Liens arising by operation of law and in the ordinary course of business;

 

(10)            Liens incurred in connection with government contracts, including the assignment of moneys due or to become due thereon;

 

(11)            Liens securing Hedging Obligations or Other Hedging Agreements, in each case not for speculative purposes;

 

(12)            Liens arising in the ordinary course of business and not in connection with the borrowing of money or Liens to secure the payment of pension, retirement or similar obligations;

 

(13)            Liens securing judgements or orders, or securing appeal or other surety bonds related to such judgements or orders, against the Covenant Parent or any of its Subsidiaries relating to litigation being contested in good faith by appropriate proceedings;

 

(14)            Liens securing any Permitted Interest;

 

(15)            extensions, substitutions, replacements or renewals of any of the foregoing Indebtedness; provided that (i) such Indebtedness is not increased and (ii) if the assets securing any such Indebtedness are changed in connection with any such extension, substitution, replacement or renewal, the value of the assets securing such Indebtedness is not increased;

 

(16)            Liens incurred in connection with Lease Obligations (including any lease, concession, license of property, operating lease or other arrangement (or guarantee thereof) which are considered to be a finance lease or capital lease after implementation of IFRS 16 (Leases));

 

(17)            Liens to secure the payment of all or any part of the price of acquisition, construction or improvement of Principal Property or Capital Stock by the Covenant Parent or any of its Subsidiaries, or to secure any Indebtedness or obligation incurred by the Covenant Parent or any of its Subsidiaries, prior to, at the time of, or within one-hundred-and-eighty (180) days after, the later of the acquisition or completion of construction, including any improvements on a Principal Property, which Indebtedness or obligation is incurred for the purpose of financing all or any part of the purchase, construction or improvement of such Principal Property; and

 

11

 

 

(18)          Liens securing Indebtedness or other obligations in an amount not to exceed the greater of: (i) $500.0 million or (ii) 5.0% of the Consolidated Total Assets.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

“Post-Completion Accession Date” means the date on which the Post-Completion Additional Guarantors become Guarantors.

 

“Post-Completion Additional Guarantors” means the entities named in Schedule B hereto and any entity owning, directly or indirectly, 100% of the shares of WestRock after the consummation of the Combination (other than Smurfit WestRock), if applicable.

 

“Principal Property” means any building, structure or other facility, together with the land upon which it is erected and fixtures comprising a part thereof or any production, processing or other similar equipment or machinery contained therein, owned or leased by the Covenant Parent or any of its Subsidiaries, used primarily for manufacturing, the net book value on the books of the Ultimate Parent of which on the date as of which the determination is being made exceeds 2% of Consolidated Net Tangible Assets, other than any such building, structure or other facility or any portion thereof or any such fixture, equipment or machinery (together with the land upon which it is erected and fixtures comprising a part thereof) which, in the opinion of the Board of Directors of the Ultimate Parent, is not of material importance to the total business conducted by the Ultimate Parent and its Subsidiaries taken as a whole.

 

“Private Placement Legend” means the legend set forth in Section 2.7(g).

 

“Public Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (1) a public offering registered under the Securities Act or (2) a private placement to institutional investors that is underwritten for resale in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the Commission for public resale. The term “Public Indebtedness,” for the avoidance of doubt, shall not be construed to include any Indebtedness issued to institutional investors in a direct placement of such Indebtedness that is not underwritten by an intermediary (it being understood that, without limiting the foregoing, a financing that is distributed to not more than ten Persons (provided that multiple managed accounts and affiliates of any such Persons shall be treated as one Person for the purposes of this definition) shall not be deemed underwritten), or any Indebtedness under the Revolving Facility Agreement, commercial bank or similar Indebtedness, Lease Obligation or recourse transfer of any financial asset or any other type of Indebtedness incurred in a manner not customarily viewed as a “securities offering” or in connection with any securitization or other structured finance transaction.

 

“Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A under the Securities Act.

 

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“Rating Agency” means each of Moody’s, S&P, Fitch or any other nationally recognized statistical rating agency or agencies, as the case may be, but only to the extent that such Rating Agency is then engaged by the Ultimate Parent or the Issuer to provide a rating for the Notes.

 

“Rating Date” means the date of first public announcement of an event that constitutes a Change of Control.

 

“Rating Event” means, with respect to the Notes, that any time within a 90 day period from the Rating Date (which period shall be extended for up to, but no longer than, an additional 90 days so long as any Rating Agency has publicly announced that it is considering a possible downgrade of such Notes), (i) the rating on the Notes is lowered by at least one Rating Agency and (ii) the Notes are rated below an Investment Grade rating by at least two Rating Agencies, if the Notes are rated by all three Rating Agencies, or by each Rating Agency, if the Notes are rated by fewer than three Rating Agencies; provided that a Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Rating Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agency or Rating Agencies, as applicable, making the reduction in rating to which this definition would otherwise apply does or do not announce or publicly confirm or inform us in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Rating Event). The Trustee shall not be responsible for monitoring or charged with knowledge of the ratings on the Notes.

 

“Record Date” means a Record Date specified in any Note.

 

“Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 7 of the relevant series of Notes.

 

“Redemption Price” when used with respect to any Note to be redeemed, means the price fixed for such redemption pursuant to this Indenture and Paragraphs 7 and 8 of the relevant series of Notes.

 

“Registrar” shall have the meaning set forth in Section 2.3.

 

“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the Issue Date, among the Issuer, the Guarantors specified therein and BNP Paribas Securities Corp., Citigroup Global Markets Inc., ING Financial Markets LLC and Rabo Securities USA, Inc., as representatives of the several initial purchasers, as such agreement may be amended, supplemented or otherwise modified from time to time.

 

“Regulation S” means Regulation S (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Regulation S Global Note” shall have the meaning set forth in Section 2.1.

 

“Relevant Taxing Jurisdiction” shall have the meaning set forth in Section 4.20(a).

 

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“Restricted Lien” shall have the meaning set forth in Section 4.10.

 

“Revolving Facility Agreement” means (i) the Revolving Facility Agreement dated 28 January 2019 between, among others, SKG as the parent, SKIL as the company (the company formerly being Smurfit Kappa Holdings Limited, which was merged by absorption into SKIL in 2023), the other borrowers named therein, Banco Santander, S.A., London Branch, Barclays Bank plc, BNP Paribas, Dublin Branch, Credit Agricole Corporate and Investment Bank, Credit Lyonnais S.A., Citibank N.A., Jersey Branch, Commerzbank Aktiengesellschaft, Coöperatieve Rabobank U.A. trading as Rabobank Dublin, Danske Bank A/S, HSBC France, ING Bank N.V., Dublin Branch and Ulster Bank Ireland DAC as mandated lead arrangers; and National Westminster Bank plc as agent, as the same may be amended, supplemented or otherwise modified from time to time and (ii) any renewal, extension, refunding, restructuring, replacement, or refinancing thereof (whether with the original facilities agent and lenders or another facilities agent or agents or other lenders and whether provided under the Revolving Facility Agreement or any other agreement or indenture).

 

“Rule 144” means Rule 144 (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Rule 144A” means Rule 144A (including any successor regulation thereto) under the Securities Act, as it may be amended from time to time.

 

“Rule 144A Global Note” shall have the meaning set forth in Section 2.1.

 

“S&P” means Standard & Poor’s Global Ratings or any successor to the rating agency business thereof.

 

“Securities Act” means the United States Securities Act of 1933, as amended.

 

“Securitization Lien” means a customary back-up security interest granted as part of a sale, lease, transfer or other disposition of assets by the Covenant Parent or any of its Subsidiaries to, either directly or indirectly, any issuer in a securitization or other structured finance transaction.

 

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

 

“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date hereof.

 

“SKA” means the party named as such in this Indenture, and any successor thereto, which serves as the issuer of the Existing SKA Senior Notes.

 

“SKG” means the party named as such in this Indenture, and any successor thereto or any other entity that serves as the ultimate parent company of the Issuer.

 

“SKIL” means the party named as such in this Indenture, and any successor thereto.

 

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“Subsidiary” means, with respect to any specified Person:

 

(1)            any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

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

 

provided, however, that for purposes of Section 4.10 and Section 6.1(5), the term “Subsidiary” shall exclude (i) any Subsidiary which is principally engaged in leasing or in financing installment receivables or which is principally engaged in financing the operations of the Covenant Parent or any of its Subsidiaries or (ii) any financial entity whose accounts as of the date of determination are not required to be consolidated with the accounts of the Ultimate Parent in its audited consolidated financial statements or (iii) any Subsidiary that is an issuer in a securitization or other structured financing transaction, so long as in the case of clauses (ii) or (iii) such Subsidiary does not own any Principal Property.

 

“Subsidiary Guarantors” means the Subsidiary Guarantors named in Schedule A hereto.

 

“Successor Issuer” shall have the meaning set forth in Section 5.1(1).

 

“Tax Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and Paragraph 8 of the relevant series of Notes.

 

“Taxes” shall have the meaning set forth in Section 4.20(a).

 

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

 

“Transaction Agreement” means that certain transaction agreement dated as of September 12, 2023 by and among SKG, Smurfit WestRock Limited (formerly known as Cepheidway Limited and to be re-registered as an Irish public limited company and renamed Smurfit WestRock plc) (“Smurfit WestRock”), Sun Merger Sub, LLC, a wholly owned subsidiary of Smurfit WestRock (“Merger Sub”), and WestRock.

 

“Treasury Rate” means, as of any redemption date, the yield determined by the Issuer in accordance with the following two paragraphs:

 

The Treasury Rate shall be determined by the Issuer after 4:15 p.m., New York time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate in respect of a series of Notes, the Issuer shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to Par Call Date for such series of Notes (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to such Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than such Remaining Life – and shall interpolate to such Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than such Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

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If on the third business day preceding the redemption date with respect to a series of Notes H.15 TCM is no longer published, the Issuer shall calculate the applicable Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date for such series of Notes, as applicable. If there is no United States Treasury security maturing on such Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from such Par Call Date, one with a maturity date preceding such Par Call Date and one with a maturity date following such Par Call Date, the Issuer shall select the United States Treasury security with a maturity date preceding such Par Call Date. If there are two or more United States Treasury securities maturing on such Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York time, of such United States Treasury security, and rounded to three decimal places.

 

“Trust Officer” means any officer within Trust & Security Services (or any successor group of the Trustee), including any director, managing director, vice president, assistant vice president, corporate trust officer, assistant corporate trust officer, secretary, assistant secretary, treasurer, assistant treasurer, associate or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at that time shall be such officers having direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such trust matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

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“Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and thereafter means such successor.

 

“Ultimate Parent” means any entity that serves as the ultimate parent company of the Issuer from time to time and any successor thereto. For the avoidance of doubt, at the Issue Date such entity shall be SKG and, after completion of the Combination, Smurfit WestRock.

 

“U.S. Person” means a “U.S. person” as defined in Rule 902 under the Securities Act or any successor rule.

 

“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

“WestRock” means WestRock Company, a corporation incorporated in the State of Delaware, and its subsidiary undertakings and associated undertakings.

 

SECTION 1.2. Incorporation by Reference of TIA. Whenever this Indenture refers to a provision of the TIA, the portion of such provision required to be incorporated herein in order for this Indenture to be qualified under the TIA is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:

 

“indenture securities” means the Notes.

 

“indenture securityholder” means a Holder.

 

“indenture to be qualified” means this Indenture.

 

“indenture trustee” or “institutional trustee” means the Trustee.

 

“obligor on this indenture securities” means the Issuer or any other obligor on the Notes.

 

All other terms used in this Indenture (other than those defined herein) that are defined by the TIA, defined in the TIA by reference to another statute or defined by any Commission rule have the meanings therein assigned to them.

 

If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317, inclusive, of the TIA through the operation of Section 318(c) thereof, such imposed duties shall control.

 

SECTION 1.3. Rules of Construction. Unless the context otherwise requires:

 

(a)            a term has the meaning assigned to it;

 

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

 

(c)            “or” is not exclusive;

 

(d)            the term “including” is not limiting;

 

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

 

(f)            provisions apply to successive events and transactions;

 

(g)            for purposes of this Indenture, the word “series”, when used in reference to any Notes, shall refer to whether such notes are 2030 Notes, 2034 Notes or 2054 Notes and each of the 2030 Notes, 2034 Notes and the 2054 Notes shall constitute a separate series of Notes;

 

(h)            the word “Additional” (e.g., in “Additional 2030 Notes”, “Additional 2034 Notes” or “Additional 2054 Notes”), when used in reference to any series of Original Notes, shall mean Additional Notes of such series; and

 

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

 

ARTICLE II

 

THE NOTES

 

SECTION 2.1. Form and Dating. The Notes and the notation relating to the Trustee’s certificate of authentication thereof, shall be substantially in the form of Exhibit A-1, A-2, A-3, B1, B-2 or B-3, as applicable. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage; provided that any such notations, legends or endorsements are in a form reasonably acceptable to the Issuer. The Issuer and the Trustee shall approve the forms of the Notes and any notation, legend or endorsement on them. Each Note shall be dated the date of its issuance and shall show the date of its authentication.

 

The terms and provisions contained in the Notes, annexed hereto as Exhibits A-1, A-2, A3, B-1, B-2 and B-3, shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Issuer, Trustee, the Registrar and the Paying Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. The Notes will initially be represented by the Global Notes.

 

Notes offered and sold to non-U.S. persons outside the United States in offshore transactions in their initial distribution in reliance on Regulation S shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A-1, Exhibit A-2 or Exhibit A3 hereto, with such applicable legends as are provided in Exhibit A-1, Exhibit A-2 or Exhibit A-3, as applicable, except as otherwise permitted herein (together with all other Notes that are not Rule 144A Global Notes, the “Regulation S Global Notes”). The aggregate principal amount of the Regulation S Global Notes of any series may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Regulation S Global Note of the same series), in connection with a corresponding decrease or increase in the aggregate principal amount of the Rule 144A Global Notes of the same series or in consequence of the issue of Definitive Notes of the same series or additional Regulation S Global Notes of the same series, as hereinafter provided.

 

Notes offered and sold in their initial distribution to QIBs in reliance on Rule 144A shall be initially issued in global form without interest coupons, substantially in the form of Exhibit A-1, Exhibit A-2 or Exhibit A-3 hereto, with such applicable legends as are provided in Exhibit A-1, Exhibit A-2 or Exhibit A-3 hereto, as applicable, except as otherwise permitted herein (the “Initial Rule 144A Global Notes” and together with any other Note evidencing the debt, or any portion of the debt, evidenced by such Initial Rule 144A Global Notes, the “Rule 144A Global Notes”). The aggregate principal amount of the Rule 144A Global Notes of any series may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Registrar, as the case may be, as hereinafter provided (or by the issue of a further Rule 144A Global Note of the same series), in connection with a corresponding decrease or increase in the aggregate principal amount of the Regulation S Global Notes of the same series or in consequence of the issue of Definitive Notes of the same series or additional Rule 144A Global Notes of the same series, as hereinafter provided.

 

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After a transfer of any Notes pursuant to and during the period of the effectiveness of a Shelf Registration Statement with respect to such Notes, as the case may be, all requirements pertaining to legends on such Note will cease to apply, and a certificated note or a note in global form, as applicable, without the applicable legends provided in Exhibit A-1, A-2 or A-3, will be available to the transferee of the Holder of such Note upon exchange of such transferring Holder’s certificated Note or appropriate directions to transfer such Holder’s interest in the Global Note, as applicable. Upon the consummation of an Exchange Offer with respect to the Notes, all requirements pertaining to such Notes that Notes issued to certain Holders be issued in global form will still apply with respect to Holders of such Notes that do not exchange their Notes, and Exchange Notes in certificated or global form, in each case, without legends will be available to Holders that exchange such Notes in such Exchange Offer. Any Additional Notes sold in an offering registered under the Securities Act shall not be required to bear the legends provided in Exhibit A-1, A-2 or A-3.

 

SECTION 2.2. Execution and Authentication. Two Officers shall sign, or one Officer and one member of the Board of Directors of the Issuer shall sign, or two members of the Board of Directors of the Issuer shall sign, or one Officer shall sign and one Officer, a Secretary or an Assistant Secretary (each of whom shall, in each case, have been duly authorized by all requisite corporate actions) shall attest to, each Note for the Issuer by manual or facsimile signature.

 

If an Officer or member of the Board of Directors of the Issuer whose signature is on a Note was an Officer or member of such Board of Directors at the time of such execution but no longer holds that office or position at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

 

A Note shall not be valid until an authorized signatory of the Trustee or Deutsche Bank Trust Company Americas as the appointed Authenticating Agent manually or electronically signs the certificate of authentication on the Note. The signature shall be conclusive evidence that such Note has been authenticated under this Indenture.

 

Except as otherwise provided herein, the aggregate principal amount of Notes which may be outstanding at any time under this Indenture is not limited in amount. The Trustee shall, upon receipt of an Issuer Order in the form of an Officers’ Certificate, authenticate (i) Original Notes for original issue on the Issue Date in an aggregate principal amount of $750 million in respect of the 2030 Notes, $1,000 million in respect of the 2034 Notes and $1,000 million in respect of the 2054 Notes and (ii) Additional Notes of any series from time to time for issuance after the Issue Date to the extent permitted hereunder. Additional 2030 Notes will be treated as the same series of Notes as the Original 2030 Notes, Additional 2034 Notes will be treated as the same series of Notes as the Original 2034 Notes and Additional 2054 Notes will be treated as the same series of Notes as the Original 2054 Notes for all purposes under this Indenture, including for purposes of waivers, amendments, redemptions and offers to purchase. Such Issuer Order shall specify the aggregate principal amount of Notes to be authenticated, the series and type of Notes, the date on which the Notes are to be authenticated, the issue price and the date from which interest on such Notes shall accrue, whether the Notes are to be Original Notes or Additional Notes (including in respect of which series), whether the Notes are to be issued as Definitive Notes or Global Notes (including in respect of which series) and whether or not the Notes shall bear the Private Placement Legend, or such other information as the Trustee may reasonably request. Upon receipt of an Issuer Order in the form of an Officers’ Certificate, the Trustee shall authenticate Notes in substitution of Notes of the same series originally issued to reflect any name change of the Issuer. In authenticating the Notes and accepting the responsibilities under this Indenture in relation to the Notes, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.

 

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The Trustee may appoint an authenticating agent (“Authenticating Agent”) reasonably acceptable to the Issuer to authenticate Notes. Unless otherwise provided in the 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 Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer. The Trustee initially appoints the Registrar as Authenticating Agent of the Notes and the Issuer hereby confirms that such appointment is acceptable to it. The Notes shall be issuable only in denominations of $200,000 and any integral multiple of $1,000 in excess thereof.

 

SECTION 2.3. Registrar and Paying Agent. The Issuer shall maintain an office or agency where (a) Definitive Notes may be presented or surrendered for registration of transfer or for exchange (such office or agency, the “Registrar”), (b) Global Notes (and Definitive Notes, if issued) may be presented or surrendered for payment (“Paying Agent”) and (c) notices and demands in respect of such Global Notes (and Definitive Notes, if issued) and this Indenture may be served. In the event that Definitive Notes are issued, the Issuer shall ensure that at least one Person located in London, England and one Person located in Dublin, Ireland (if and for so long as the Notes of any series are admitted to the Global Exchange Market of the Irish Stock Exchange plc trading as Euronext Dublin (“Euronext Dublin”) and the rules of Euronext Dublin so require), in each case reasonably acceptable to the Trustee, is maintained as a Paying Agent and Registrar where (i) in the case of a Registrar, Definitive Notes may be presented or surrendered for registration of transfer or for exchange and notices and demands in respect of such Definitive Notes and this Indenture may be served and (ii) in the case of a Paying Agent, Definitive Notes may be presented or surrendered for payment. The Registrar shall keep a register of the Definitive Notes and of their transfer and exchange. Notices and demands in respect of Global Notes shall be made by the Issuer in accordance with Section 11.1. The Issuer, upon written notice to the Trustee, may have one or more co-Registrars and one or more additional Paying Agents reasonably acceptable to the Trustee. The term “Registrar” includes any co-Registrar and the term “Paying Agent” includes any additional Paying Agent.

 

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The Issuer initially appoints Deutsche Bank Trust Company Americas as Paying Agent, transfer agent (the “Transfer Agent”) and Registrar, until such time as any such entity has resigned or a successor has been appointed. In the event that a Paying Agent, Registrar or Transfer Agent is replaced, the Issuer will (so long as the Notes are Global Notes) provide written notice thereof to the Trustee in accordance with Section 11.1. The Issuer may change any Paying Agent, Registrar or Transfer Agent for any series of Notes without prior notice to the Holders. The Covenant Parent or any of its Subsidiaries may act as Paying Agent or Registrar in respect of any series of Notes. If and for so long as any series of Notes is admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice of the change in Paying Agent, Registrar or Transfer Agent for such series to the Companies Announcement Office of Euronext Dublin.

 

The rights, duties and obligations of the Trustee and the Agents are several and not joint.

 

Payment of principal will be made upon the surrender of Definitive Notes following maturity thereof at the office of the Paying Agent. In the case of a transfer of a Definitive Note in part, upon surrender of the Definitive Note to be transferred, a Definitive Note of the same series shall be issued to the transferee in respect of the principal amount transferred and a Definitive Note of the same series shall be issued to the transferor in respect of the balance of the principal amount of the transferred Definitive Note at the office of any transfer agent. In all circumstances, the Issuer shall ensure that the Paying Agent shall be located outside Ireland.

 

For the avoidance of doubt, upon the issuance of Definitive Notes, Holders will be able to receive principal and interest on the Notes and will be able to transfer Definitive Notes at the office of such paying and transfer agent, subject to the right of the Issuer to mail payments in accordance with the terms of this Indenture.

 

Claims against the Issuer or any Guarantor for payment of principal, interest and Additional Amounts, if any, on the Notes will become void unless presentment for payment is made (where so required herein) within, in the case of principal and Additional Amounts, if any, a period of ten years or, in the case of interest, a period of five years, in each case from the applicable original payment date therefor.

 

SECTION 2.4. Paying Agent To Hold Money. The Issuer shall require each Paying Agent other than the Trustee and the initial Paying Agent to agree in writing, which shall incorporate the provisions of the TIA, that each Paying Agent shall hold for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, Additional Amounts, if any, premium, if any, or interest on, the Notes, and shall notify the Trustee of any Default by the Issuer in making any such payment. The Issuer at any time may require a Paying Agent to distribute all money held by it to the Trustee and account for any money disbursed and the Trustee may at any time during the continuance of any payment Default, upon written request to a Paying Agent, require such Paying Agent to distribute all money held by it to the Trustee and to account for any money distributed. Upon distribution to the Trustee of all money that shall have been delivered by the Issuer to the Paying Agent, the Paying Agent shall have no further liability for such money.

 

SECTION 2.5. List of Holders. In the event that Definitive Notes are issued, the Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of the relevant Holders of Notes. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee before each Record Date and at such other times as the Trustee may request in writing a list as of such date and in such form as the Trustee may reasonably require of the names and addresses of the relevant Holders of Notes, which list may be conclusively relied upon by the Trustee.

 

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SECTION 2.6. Book-Entry Provisions for Global Notes. (a) The Global Notes initially shall (i) be registered in the name of Cede & Co., the nominee of DTC, (ii) deposited on behalf of the purchasers of the Notes with a custodian for DTC and (iii) bear legends as set forth in Section 2.7(g).

 

(b)            Notwithstanding any other provisions of this Indenture, Global Notes may not be transferred except as a whole by Cede & Co., the nominee of DTC, to DTC or to another nominee of DTC, or, in each case, to a successor of DTC or a nominee of such successor. Interests of beneficial owners in the Global Notes may be transferred or exchanged for Definitive Notes of the same series in accordance with the rules and procedures of the Clearing Agency and the provisions of this Section 2.6, subject to the occurrence of the limited circumstances described in the following sentence. All Global Notes shall be exchanged by the Issuer (with authentication by the Trustee upon receipt of an Issuer Order) for one or more Definitive Notes of the same series, if (a) the Clearing Agency notifies the Issuer at any time that it is unwilling or unable to continue to act as a clearing agency and a successor depositary is not appointed within 120 days of such notification, (b) the Clearing Agency so requests following an Event of Default hereunder or (c) in whole (but not in part) at any time if the Issuer in its sole discretion determines and notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes of such series. If an Event of Default occurs and is continuing, the Issuer shall, at the written request delivered through DTC, exchange all or part of a Global Note for one or more Definitive Notes of the same series (with authentication by the Trustee upon receipt of an Issuer Order); provided, however, that the principal amount at maturity of such Definitive Notes and such Global Note after such exchange shall be $200,000 or integral multiples of $1,000 in excess thereof. Whenever all of a Global Note is exchanged for one or more Definitive Notes, it shall be surrendered by the Holder thereof to the Registrar for cancellation. Whenever a part of a Global Note is exchanged for one or more Definitive Notes, such Global Note shall be surrendered by the Holder thereof to the Registrar who shall cause an adjustment to be made to Schedule A of such Global Note such that the principal amount of such Global Note will be equal to the portion of such Global Note not exchanged and shall thereafter return such Global Note to such Holder. A Global Note may not be exchanged for a Definitive Note other than as provided in this Section 2.6(b). Every Note authenticated and delivered in exchange for or in lieu of a Global Note, or any portion thereof, pursuant to Section 2.8, 2.11 or 3.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Note of the same series.

 

(c)            In connection with the transfer of Global Notes as an entirety to beneficial owners pursuant to paragraph (b) of this Section 2.6, the Global Notes shall be deemed to be surrendered to the Registrar for cancellation, and the Issuer shall execute, and the Trustee shall upon written instructions from the Issuer authenticate and make available for delivery, to each beneficial owner in exchange for its beneficial interest in the Global Notes, an equal aggregate principal amount of Definitive Notes of the same series of authorized denominations.

 

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(d)            Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.6(b) shall, except as otherwise provided by Section 2.7, bear the Private Placement Legend.

 

(e)            Prior to the expiration of the 40-day distribution compliance period as defined in Regulations S, ownership of book-entry interests will be limited to non-U.S. persons and other persons to whom an offer or sale of the Notes is made pursuant to an exemption from registration under the Securities Act.

 

SECTION 2.7. Registration of Transfer and Exchange. (a) Notwithstanding any provision to the contrary herein, so long as a Note remains outstanding, transfers of beneficial interests in Global Notes or transfers of Definitive Notes, in whole or in part, shall be made only in accordance with this Section 2.7.

 

(b)            If a holder of a beneficial interest in a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in a Regulation S Global Note of the same series, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Regulation S Global Note, such holder may, subject to the rules and procedures of the Clearing Agency, to the extent applicable, and subject to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Regulation S Global Note. Upon (1) written instructions given in accordance with the procedures of the Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Rule 144A Global Note, directing the credit of a beneficial interest in the Regulation S Global Note of the same series in an amount equal to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (2) a written order given in accordance with the procedures of the Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account and (3) receipt by the Registrar of a certificate in the form of Exhibit C-1, C-2 or C-3, as applicable, given by the holder of such beneficial interest stating that the exchange or transfer of such interest has been made pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S or Rule 144 under the Securities Act, the Registrar shall promptly deliver appropriate instructions to the Clearing Agency to reduce or reflect on its records a reduction of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred from the relevant participant, and the Registrar shall promptly deliver appropriate instructions to the Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Regulation S Global Note equal to the reduction in the principal amount of such Rule 144A Global Note.

 

(c)            If a holder of a beneficial interest in a Regulation S Global Note wishes at any time to exchange its interest in such Regulation S Global Note for an interest in a Rule 144A Global Note of the same series, or to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Rule 144A Global Note, such holder may, subject to the rules and procedures of the Clearing Agency, to the extent applicable, and to the requirements set forth in the following sentence, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Rule 144A Global Note. Upon (1) written instructions given in accordance with the procedures of the Clearing Agency, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Regulation S Global Note directing the credit of a beneficial interest in the Rule 144A Global Note in an amount equal to the beneficial interest in the Regulation S Global Note of the same series to be exchanged or transferred, and (2) a written order given in accordance with the procedures of the Clearing Agency, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account, the Registrar shall promptly deliver appropriate instructions to the Clearing Agency to reduce or reflect on its records a reduction of such Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be exchanged or transferred, and the Registrar shall promptly deliver appropriate instructions to the Clearing Agency concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Rule 144A Global Note equal to the reduction in the principal amount of such Regulation S Global Note.

 

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(d)            Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in another Global Note of the same series will, upon transfer, cease to be an interest in such Global Note and become an interest in such other Global Note and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.

 

(e)            In the event that a Global Note is exchanged for Definitive Notes in registered form without interest coupons, pursuant to Section 2.6(b) prior to the consummation of an Exchange Offer or the effectiveness of a Shelf Registration Statement, or a Definitive Note in registered form without interest coupons is exchanged for another such Definitive Note in registered form without interest coupons, or a Definitive Note is exchanged for a beneficial interest in a Global Note, such Notes may be exchanged or transferred for one another only in accordance with (i) such procedures as are substantially consistent with the provisions of Sections 2.7(b) and (c) above (including the certification requirements intended to ensure that such exchanges or transfers comply with Rule 144, Rule 144A or Regulation S, as the case may be) and as may be from time to time adopted by the Issuer and the Trustee.

 

(f)            [Intentionally omitted]

 

(g)            Each Global Note and each Definitive Note issued hereunder shall, upon issuance, bear the legend set forth herein and such legend shall not be removed from such Note except as provided in the next sentence or as provided in Section 2.1. The legend required for a Note may be removed from a Note if there is delivered to the Issuer and the Trustee such satisfactory evidence, which may include an opinion of independent counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer and the Trustee, that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee, upon receipt of an Issuer Order, shall authenticate and deliver in exchange for such Note another Note or Notes of the same series having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Note has been removed from a Note as provided above, no other Note issued in exchange for all or any part of such Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Note is a “restricted security” within the meaning of Rule 144 and instructs the Trustee to cause a legend to appear thereon.

 

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The Notes shall bear the following legend (the “Private Placement Legend”) on the face thereof:

 

[IN THE CASE OF RULE 144A NOTES]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE GUARANTORS, OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) ITS ACQUISITION AND HOLDING OF SUCH NOTES OR AN INTEREST THEREIN DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) IT WILL NOT SELL OR OTHERWISE TRANSFER SUCH NOTES UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTIES IN (1) ABOVE.

 

[IN THE CASE OF REGULATION S NOTES]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

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THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

(h)            By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.

 

None of the Trustee, the Registrar, the Paying Agent or the Transfer Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.6 or this Section 2.7. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

 

(i)            Definitive Notes shall be transferable only upon the surrender of a Definitive Note for registration of transfer. When a Definitive Note is presented to the Registrar or a co-registrar with a request to register a transfer, the Registrar shall register the transfer as requested if its requirements for such transfers are met. When Definitive Notes are presented to the Registrar or a co-registrar with a request to exchange them for an equal principal amount of Definitive Notes of the same series of other denominations, the Registrar shall make the exchange as requested if the same requirements are met. To permit registration of transfers and exchanges, the Issuer shall execute and, upon receipt of an Issuer Order, the Trustee shall authenticate Definitive Notes at the Registrar’s or co-registrar’s request.

 

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(j)            The Issuer shall not be required to make, and the Registrar need not register transfers or exchanges of, Definitive Notes (i) that have been selected for redemption (except, in the case of Definitive Notes to be redeemed in part, the portion thereof not to be redeemed) or (ii) for a period of 15 days prior to a selection of Definitive Notes to be redeemed.

 

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

 

(l)            No service charge will be made for any registration or transfer or exchange of the Notes, but the Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by this Section 2.7.

 

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

 

(n)            Provided such Notes have been offered pursuant to Rule 144A, Holders of Notes (or holders of interests therein) and prospective purchasers designated by such Holders (or holders of interests therein) will have the right to obtain from the Issuer upon request by such Holders (or holders of interests therein) or prospective purchasers, during any period in which the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, or is exempt from reporting pursuant to 12g3-2(b) under the Exchange Act, the information required by paragraph d(4)(i) of Rule 144A in connection with any transfer or proposed transfer of such Notes.

 

SECTION 2.8. Replacement Notes. If a mutilated Definitive Note is surrendered to the Registrar, if a mutilated Global Note is surrendered to the Issuer or if the Holder of a Note claims that such Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and, upon receipt of an Issuer Order, the Trustee shall authenticate a replacement Note of the same series in such form as the Note being replaced if the requirements of the Trustee, the Registrar and the Issuer are met. If required by the Trustee, the Registrar and the Issuer, such Holder must provide an indemnity bond or other indemnity, sufficient in the judgment of the Issuer, the Registrar and the Trustee, to protect the Issuer, the Registrar, the Trustee and any Agent from any loss which any of them may suffer if a Note is replaced. The Issuer may charge such Holder for its reasonable, out-of-pocket expenses in replacing a Note, including reasonable fees and expenses of counsel. Every replacement Note is an additional obligation of the Issuer. The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost, stolen or taken Notes.

 

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SECTION 2.9. Outstanding Notes. Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except those canceled by it, those delivered to it for cancellation, those reductions in the Global Note effected in accordance with the provisions hereof and those described in this Section as not outstanding. Subject to Section 2.10, a Note does not cease to be outstanding because the Issuer or any of its Affiliates holds the Note.

 

If a Note is replaced pursuant to Section 2.8 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 2.8.

 

If the principal amount of any Note is considered paid under Section 4.1, it ceases to be outstanding and interest, and Additional Amounts, if any on it cease to accrue.

 

If, on a Redemption Date or the Maturity Date of any series of Notes, the Paying Agent holds cash in U.S. dollars sufficient to pay all of the principal, interest and Additional Amounts, if any, due on such series of Notes payable on that date, then on and after that date, the Notes of such series cease to be outstanding and interest and Additional Amounts, if any, on the Notes of such series cease to accrue.

 

SECTION 2.10. Treasury Notes. In determining whether the Holders of the required principal amount of relevant Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or its Affiliates shall be disregarded, 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 Trust Officer of the Trustee actually knows are so owned shall be disregarded.

 

SECTION 2.11. Temporary Notes. Until permanent Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Definitive Notes of the same series upon receipt of an Issuer Order in the form of an Officers’ Certificate of the Issuer. Such Officers’ Certificate shall specify the amount of temporary Definitive Notes to be authenticated and the date on which the temporary Definitive Notes are to be authenticated. Temporary Definitive Notes shall be substantially in the form of permanent Definitive Notes of the same series but may have variations that the Issuer considers appropriate for temporary Definitive Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate upon receipt of an Issuer Order pursuant to Section 2.2 permanent Definitive Notes of the same series in exchange for temporary Definitive Notes. Holders of temporary Definitive Notes shall be entitled to all of the benefits of this Indenture.

 

SECTION 2.12. Cancellation. The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent, and no one else, shall cancel and, at the written direction of the Issuer, shall dispose of (subject to the record retention requirements of the Exchange Act) all Notes surrendered for transfer, exchange, payment or cancellation; provided, however, that the Trustee may, but shall not be required to, destroy such canceled Notes. Subject to Section 2.8, the Issuer may not issue new Notes to replace Notes that it has paid or delivered to the Trustee for cancellation. If the Issuer shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.12.

 

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SECTION 2.13. Defaulted Interest. If the Issuer defaults in a payment of interest on the Notes of any series, it shall pay the defaulted interest to the Holders thereof as of the relevant original Record Date; provided, however, if such default in payment of interest continues for 30 days, the Issuer shall (in the case of Definitive Notes) establish a subsequent special Record Date, which date shall be the fifteenth day next preceding the date fixed by the Issuer for the payment of defaulted interest. If no special Record Date is required to be established pursuant to the immediately preceding sentence, (i) in the case of Definitive Notes, Holders of record of the relevant series of Notes on the relevant original Record Date shall be entitled to such payment of defaulted interest and (ii) in the case of Global Notes, Holders of the Notes of such series on the Default Interest Payment Date (as defined in the next sentence) shall be entitled to such defaulted interest. The Issuer shall notify the Trustee and the Paying Agent in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment (a “Default Interest Payment Date”), and at the same time the Issuer shall deposit with the Trustee or the Paying Agent 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 or the Paying Agent 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 in this Section 2.13; provided, however, that in no event shall the Issuer deposit monies proposed to be paid in respect of defaulted interest later than 10:00 a.m. New York time on the proposed Default Interest Payment Date with respect to defaulted interest to be paid on the Note. In the case of Definitive Notes, at least 15 days before the subsequent special Record Date, if applicable, the Issuer shall deliver to the relevant Holders in accordance with Section 11.1 a notice that states the subsequent special Record Date, the payment date and the amount of defaulted interest to be paid. In the case of Global Notes, at least 15 days before the Default Interest Payment Date, the Issuer shall deliver to the relevant Holders in accordance with Section 11.1 a notice that states the Default Interest Payment Date, the payment date and the amount of defaulted interest to be paid.

 

SECTION 2.14. CUSIPs and ISINs. The Issuer in issuing the Notes may use CUSIPS or ISINs, and if so, the Trustee shall use the CUSIPs and ISINs in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of such numbers or codes printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Issuer shall promptly notify the Trustee in writing of any change in any CUSIP or ISIN.

 

SECTION 2.15. Deposit of Moneys. With respect to each series of Notes, no later than 10:00 a.m. (New York time) on each interest payment date and the Maturity Date, the Issuer shall have deposited with the Trustee or its designated Paying Agent (which shall be the initial Paying Agent unless otherwise notified to the Issuer by the Trustee) in immediately available funds money sufficient to make cash payments, if any, due on such interest payment date or Maturity Date, as the case may be, on all Notes of such series then outstanding. Such payments shall be made by the Issuer in a timely manner which permits a Paying Agent (including the initial Paying Agent) to remit payment to the Holders on such interest payment date or Maturity Date, as the case may be.

 

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SECTION 2.16. Certain Matters Relating to Global Notes. (a) Members of or participants in the Clearing Agency (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or its nominee, or under the Global Note, and DTC or its nominee may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or its nominees, or impair, as between the Clearing Agency and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Note.

 

(b)            The holder of a beneficial interest in any Global Note may grant proxies and otherwise authorize any person, including the Clearing Agency and their Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes of the same series.

 

SECTION 2.17. Interest. Interest accrued on the 2030 Notes will be payable semiannually in arrears on January 15 and July 15 of each year, commencing on July 15, 2024, to the Holders of record of the 2030 Notes on the immediately preceding January 1 and July 1. Interest on the 2034 Notes will be payable semi-annually in arrears on April 3 and October 3 of each year, commencing on October 3, 2024, to the Holders of record of the 2034 Notes on the immediately preceding March 19 and September 18. Interest on the 2054 Notes will be payable semi-annually in arrears on April 3 and October 3 of each year, commencing on October 3, 2024, to the Holders of record of the 2054 Notes on the immediately preceding March 19 and September 18. Interest on the Notes of each series will be calculated on the aggregate nominal amount of Notes of the relevant series outstanding. Rights of holders of beneficial interests in the Notes to receive such payments will be subject to the applicable procedures of DTC.

 

Interest accrued on all Notes then outstanding will be payable in cash.

 

SECTION 2.18. Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Issuer shall issue and, upon receipt of a Issuer Order in accordance with Section 2.7, the Trustee shall authenticate (i) one or more Global Notes without the Private Placement Legend in an aggregate principal amount equal to the principal amounts of the beneficial interests in the Global Notes tendered for acceptance by Persons that provide in the applicable letters of transmittal such certifications as are required by the Registration Rights Agreement and applicable law, and accepted for exchange in the Exchange Offer and (ii) Definitive Notes without the Private Placement Legend in an aggregate principal amount equal to the principal amount of the Definitive Notes tendered for exchange by Persons that provide in the applicable letters of transmittal such certifications as are required by the Registration Rights Agreement and applicable law, and accepted by the Issuer for exchange in the Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Global Notes with the Private Placement Legend to be reduced accordingly, and the Issuer shall execute and the Trustee shall authenticate and deliver to the Persons designated by the Holders of the Definitive Notes so accepted Definitive Notes without the Private Placement Legend in the applicable principal amount. Any Notes that remain outstanding after the consummation of the Exchange Offer, and Exchange Notes issued in connection with the Exchange Offer, shall be treated as a single class of securities under this Indenture. For greater certainty, an owner of a beneficial interest in a Global Note representing an Original Note (a “Beneficial Interest Owner”) or Holder of an Original Note, as applicable, shall, pursuant to the terms of the Original Notes, have the right to acquire beneficial interests in Exchange Notes issued as a Global Note or Exchange Notes, as applicable, in each case in an aggregate principal amount equal to the principal amounts of the beneficial interests in such Global Note or such Original Note, as applicable, tendered for acceptance by such Beneficial Interest Owner or Holder, as applicable, to the extent such tendered beneficial interests or Original Note, as applicable, are accepted by the Issuer for exchange in the Exchange Offer.

 

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SECTION 2.19. Additional Interest Under Registration Rights Agreement. If a Registration Default (as defined in the Registration Rights Agreement) occurs, Additional Interest shall accrue on each Note in accordance with the terms of the Registration Rights Agreement.

 

ARTICLE III

 

REDEMPTION

 

SECTION 3.1. Optional Redemption. The Notes may be redeemed, as a whole or from time to time in part, upon the terms and at the applicable redemption prices set forth in the relevant Notes. Any redemption pursuant to this Section 3.1 shall be made pursuant to the provisions of this Article III. The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes except as provided in Section 3.8 below.

 

SECTION 3.2. Notices to Trustee. If the Issuer elects to redeem the Notes of any series pursuant to Paragraphs 7 or 8 of the Notes of such series, it shall notify the Trustee and the Paying Agent in writing of the Redemption Date and the principal amount of Notes to be redeemed at least 10 days but not more than 60 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee). The Issuer shall give notice of redemption as required under the relevant paragraph of the relevant series of Notes pursuant to which such Notes are being redeemed.

 

SECTION 3.3. Selection of Notes to Be Redeemed. If less than all of any series of Notes is to be redeemed pursuant to their terms or the terms of this Indenture at any time, selection of such Notes for redemption will be made by the Trustee or the relevant Registrar in compliance with the requirements of the principal securities exchange, if any, on which the applicable series of Notes is listed, and in compliance with the requirements of the Clearing Agency, or if the applicable series of Notes is not so listed or such exchange prescribes no method of selection and the applicable series of Notes is not held through the Clearing Agency or the Clearing Agency prescribes no method of selection, on a pro rata basis; provided, however, that no Note of $200,000 in aggregate principal amount or less, or other than in an integral multiple of $1,000 in excess thereof, shall be redeemed in part. In the event of partial redemption, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 10 nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding Notes of the applicable series not previously called for redemption.

 

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SECTION 3.4. Notice of Redemption. Other than in connection with a special mandatory redemption required pursuant to Section 3.8, at least 10 days but not more than 60 days before a Redemption Date, the Issuer shall deliver to Holders in accordance with Section 11.1, a notice of redemption. Any redemption and notice may, at the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent, and such notice may state that, in the Issuer’s discretion, the redemption date may be delayed without any additional notice until such time as any or all such conditions shall have been satisfied. At the Issuer’s request made at least 10 days before the Redemption Date (or such shorter period as may be acceptable to the Trustee), the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided, however, that the Issuer shall deliver to the Trustee an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the following items. Each notice for redemption shall identify the Notes to be redeemed and shall state:

 

(a)            the Redemption Date;

 

(b)            the Redemption Prices, including the amount of accrued and unpaid interest, if any, and Additional Amounts, if any, to be paid (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, due on the relevant interest payment date);

 

(c)            the Record Date;

 

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

 

(e)            that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price, including accrued and unpaid interest, if any, and Additional Amounts, if any;

 

(f)            that, unless the Issuer defaults in making the redemption payment, interest and Additional Amounts, if any, on Notes called for redemption cease to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Notes redeemed;

 

(g)            (i) if any Global Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, interest and Additional Amounts, if any, shall cease to accrue on the portion called for redemption, and upon surrender of such Global Note, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unredeemed portion, will be returned and (ii) if any Definitive 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 Definitive Note, a new Definitive Note or Notes of the same series in aggregate principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof, upon cancellation of the original Note;

 

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(h)            if fewer than all the Notes of any series are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes of such series to be outstanding after such partial redemption;

 

(i)            the paragraph of the relevant series of Notes pursuant to which such Notes are to be redeemed;

 

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

 

(k)            whether the redemption is conditional on any events and, if so, a detailed explanation of such conditions.

 

SECTION 3.5. Effect of Notice of Redemption. Once notice of redemption is given in accordance with Section 3.4, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price, including accrued and unpaid interest, if any, and Additional Amounts, if any. Upon surrender to the Trustee or Paying Agent, such Notes called for redemption shall be paid at the Redemption Price (which shall include accrued and unpaid interest thereon, if any, and Additional Amounts, if any, to the Redemption Date), but (in the case of Definitive Notes) installments of interest, the maturity of which is on or prior to the Redemption Date, shall be payable to Holders of record at the close of business on the relevant Record Dates.

 

SECTION 3.6. Deposit of Redemption Price. No later than 10:00 a.m. (New York time) on the Redemption Date, the Issuer shall deposit with the Trustee or its designated Paying Agent (which shall be the initial Paying Agent unless otherwise notified to the Issuer by the Trustee) an amount of cash in U.S. dollars sufficient to pay the Redemption Price, including accrued and unpaid interest, if any, and Additional Amounts, if any, of all Notes to be redeemed on that date. The Paying Agent shall promptly return to the Issuer any cash in U.S. dollars so deposited which is not required for that purpose upon the written request of the Issuer.

 

If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the payment of such Redemption Price, including accrued and unpaid interest, if any, and Additional Amounts, if any, interest and Additional Amounts, if any, on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Notes are presented for payment. With respect to Definitive Notes, if a Definitive Note is redeemed on or after an interest Record Date but on or prior to the related interest payment date, then any accrued and unpaid interest and Additional Amounts, 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 Issuer to comply with the preceding paragraph, interest and Additional Amounts, if any, shall be paid on the unpaid principal, from the Redemption Date until such principal is paid at the rate provided in the applicable Note.

 

SECTION 3.7. Notes Redeemed in Part. Upon surrender and cancellation of a Definitive Note that is redeemed in part, the Issuer shall execute and upon receipt of an Issuer Order the Trustee shall authenticate for the Holder (at the Issuer’s expense) a new Definitive Note of the same series equal in principal amount to the unredeemed portion of the Definitive Note surrendered and canceled; provided, however, that each such Definitive Note shall be in a principal amount at maturity of $200,000 or an integral multiple of $1,000 in excess thereof. Upon surrender of a Global Note that is redeemed in part, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the Global Note surrendered; provided, however, that each such Global Note shall be in a principal amount at maturity of $200,000 or an integral multiple of $1,000 in excess thereof.

 

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SECTION 3.8. Special Mandatory Redemption.

 

(a)            If (i) the Combination is not consummated prior to March 12, 2025, (ii) the Transaction Agreement is terminated at any time prior to March 12, 2025 (other than as a result of consummating the Combination) or (iii) SKG publicly announces at any time prior to March 12, 2025 that it will no longer pursue the consummation of the Combination (any such event under clause (i), (ii) or (iii) above, a “Special Mandatory Redemption Event” and the earliest date on which any Special Mandatory Redemption Event occurs, a “Trigger Date”), then the Issuer shall redeem all of the outstanding Notes of each series at a Redemption Price (the “Special Mandatory Redemption Price”) equal to 101% of the aggregate principal amount of the Notes of such series, plus accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date.

 

(b)            If funds sufficient to pay the Special Mandatory Redemption Price of the Notes of a series to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee or the Paying Agent on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the Notes of that series will cease to bear interest.

 

(c)            In the event that the Issuer is required to redeem all of the outstanding Notes of each series pursuant to clause (a) of this Section 3.8, the Issuer will deliver, or cause to be delivered, a notice of special mandatory redemption (such notice, the “Special Mandatory Redemption Notice”) to each Holder of the Notes at its registered address (or delivered by means of publication via DTC) and the Trustee not later than five Business Days after the Trigger Date, and the Issuer will redeem the Notes on the date specified by the Issuer for such redemption in the Special Mandatory Redemption Notice (the date so specified, the “Special Mandatory Redemption Date”). The Special Mandatory Redemption Date will be no later than 20 days following the Trigger Date, but no earlier than the fifth Business Day following the day the Special Mandatory Redemption Notice is delivered to Holders of the Notes of the applicable series. At the election of the Issuer, the Special Mandatory Redemption Notice shall be given by the Trustee in the name and at the expense of the Issuer.

 

(d)            Every Special Mandatory Redemption Notice shall state:

 

(i)            the Special Mandatory Redemption Date;

 

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(ii)            the Special Mandatory Redemption Price;

 

(iii)           that the Special Mandatory Redemption Price will become due and payable upon each such Note on the Special Mandatory Redemption Date; and

 

(iv)           the place or places where such Notes of a series are to be surrendered for payment of the Special Mandatory Redemption Price.

 

A Special Mandatory Redemption Notice shall be irrevocable and not subject to the satisfaction or waiver of any condition.

 

ARTICLE IV

 

COVENANTS

 

SECTION 4.1. Payment of Notes. The Issuer shall pay the principal, premium, if any, interest and Additional Amounts, if any, on the Notes in the manner provided in such Notes and this Indenture. An installment of principal of or interest on the Notes shall be considered paid on the date it is due if the Trustee or the Paying Agent holds prior to 10:00 a.m. London time on that date money deposited by the Issuer in immediately available funds and designated for, and sufficient to pay the installment in full and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture.

 

SECTION 4.2. Maintenance of Office or Agency. The Issuer shall maintain the office or agency (which office may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) required under Section 2.3 where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 11.1. The Issuer and each Guarantor hereby initially designates the office of Smurfit Kappa Packaging LLC, located at 900 S. Pine Island Road, Suite 600, Plantation, Florida 33324, as its office or agency outside Ireland as required under Section 2.3.

 

SECTION 4.3. Reports by the Issuer. If the Issuer is subject to the requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall file with the Trustee, within 15 days after it files the same with the Commission, copies of the annual reports and the information, documents and other reports that the Issuer is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act. The Issuer will be deemed to have furnished such reports referred to in this section to the Trustee if the Issuer has filed such reports with the Commission via the EDGAR filing system or any successor system and such reports are publicly available. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).

 

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SECTION 4.4. Statements as to Compliance. The Issuer will deliver to the Trustee, within 180 days after the end of each fiscal year of the Ultimate Parent, a written statement signed by the principal executive officer, principal financial officer or principal accounting officer of the Issuer (complying with Section 314(a)(4) of the TIA), stating that:

 

(1)            a review of the activities of the Issuer and the Guarantors during such year and of performance under this Indenture has been made under his or her supervision; and

 

(2)            to the best of his or her knowledge, based on such review, the Issuer and the Guarantors are in compliance with all conditions and covenants under this Indenture.

 

For purposes of this Section 4.4, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.

 

SECTION 4.5. [Intentionally omitted]

 

SECTION 4.6. [Intentionally omitted]

 

SECTION 4.7. [Intentionally omitted]

 

SECTION 4.8. Limitation on Issuance of Guarantees of Indebtedness by Subsidiaries. (a) The Covenant Parent will not cause or permit any of its Subsidiaries that is not a Guarantor or the Issuer, directly or indirectly, to guarantee, assume or in any other manner become liable for the payment of any Indebtedness of the Covenant Parent or any of its Subsidiaries under the Existing Guarantee Covenant Notes or any other Public Indebtedness unless, subject to the limitations set forth in this Indenture, such Subsidiary executes and delivers a supplemental indenture to this Indenture providing for a Guarantee of payment of the Notes by such Subsidiary on the same terms as the guarantee of such Indebtedness within 10 Business Days thereof; provided that if such Indebtedness is by its terms expressly subordinated to the Notes or any Guarantee, any such guarantee, assumption or other liability of such Subsidiary with respect to such Indebtedness shall be subordinated to such Subsidiary’s Guarantee of the Notes at least to the same extent as such Indebtedness is subordinated to the Notes or any other Guarantee.

 

(b)            The obligations in paragraph (a) of this Section 4.8 will not be operative to the extent (1) the Notes have an Investment Grade rating from two or more Rating Agencies and (2) none of the Existing Guarantee Covenant Notes benefit from a guarantee from such Subsidiary. The obligations in paragraph (a) of this Section 4.8 will be permanently terminated and no longer in effect as of the first date on which none of the Existing Guarantee Covenant Notes are outstanding.

 

To the extent any Subsidiary of the Covenant Parent is required to provide a Guarantee, such Guarantee will be limited as necessary to recognize certain defenses generally available to guarantors (including those that relate to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally) or other considerations under applicable law.

 

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SECTION 4.9. Furnishing Guarantees. Within 60 days of the date of completion of the Combination, the Issuer shall cause each Post-Completion Additional Guarantor to execute and deliver to the Trustee a supplemental indenture substantially in the form of Exhibit D hereto pursuant to which each such Post-Completion Additional Guarantor shall, subject to any applicable contractual limitations that reflect limitations under applicable law, fully and unconditionally guarantee all of the Issuer’s obligations under the Notes and this Indenture; provided that, notwithstanding the above, no guarantee shall be required to be furnished pursuant to this Section 4.9 if or to the extent to do so would be expected to result in a material administrative or tax burden that cannot reasonably be avoided.

 

SECTION 4.10. Negative Pledge. The Covenant Parent will not, and will not permit any of its Subsidiaries to, secure any Indebtedness for money borrowed by placing a Lien (other than a Permitted Lien) on any Principal Property now or hereafter owned or leased by the Covenant Parent or any of its Subsidiaries or on any of their shares of stock (a “Restricted Lien”) without equally and ratably securing (or securing on a senior basis, in the case of a Lien securing Indebtedness that is by its terms expressly subordinated to the Notes or any Guarantee) all of the Notes, unless after giving effect thereto the aggregate principal amount of all such Indebtedness secured by a Restricted Lien then outstanding would not exceed an amount equal to 15% of Consolidated Net Tangible Assets. The restrictions set forth in the preceding sentence will not apply to any Permitted Lien, and all Indebtedness secured by a Permitted Lien shall be excluded in computing the amount of Indebtedness secured by a Lien outstanding for purposes of this covenant.

 

Any Lien created for the benefit of the holders of the Notes pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien relating to such Indebtedness that gave rise to the obligation to so secure the Notes.

 

SECTION 4.11. [Intentionally omitted]

 

SECTION 4.12. [Intentionally omitted]

 

SECTION 4.13. [Intentionally omitted]

 

SECTION 4.14. [Intentionally omitted]

 

SECTION 4.15. [Intentionally omitted]

 

SECTION 4.16. [Intentionally omitted]

 

SECTION 4.17. [Intentionally omitted]

 

SECTION 4.18. [Intentionally omitted]

 

SECTION 4.19. Change of Control Repurchase Event. (a) If a Change of Control Repurchase Event occurs with respect to any series of Notes, each Holder of the applicable series of Notes will have the right to require the Issuer to repurchase all or any part (equal to $200,000 and integral multiples of $1,000 in excess thereof in the case of Notes that have denominations larger than $200,000) of that Holder’s Notes of each applicable series pursuant to an offer (the “Change of Control Offer”) on the terms set forth in this Indenture. In the Change of Control Offer, the Issuer will offer a payment (the “Change of Control Payment”) in cash equal to 101% of the aggregate principal amount of each of the Notes repurchased plus accrued and unpaid interest and Additional Amounts, if any, thereon, to, but excluding, the date of purchase. Within 60 days following any Change of Control Repurchase Event, the Issuer will mail a notice to each Holder and the Trustee describing the transaction or transactions that constitute the Change of Control Repurchase Event and offering to repurchase Notes of each applicable series on a date (the “Change of Control Payment Date”) specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by this Indenture and described in such notice. The Issuer will comply with the requirements of Section 14(e) of the Exchange Act to the extent applicable and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.19 by virtue of such conflict.

 

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

 

(1)            accept for payment all Notes of the applicable series or portions thereof properly tendered pursuant to the Change of Control Offer;

 

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

 

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

 

(c)            The Paying Agent will promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes and the Trustee or the relevant Registrar will, upon receipt of an Issuer Order, promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $200,000 or an integral multiple of $1,000 in excess thereof.

 

(d)            In the case of Definitive Notes, if the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amounts, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest or Additional Amounts will be payable to Holders who tender pursuant to the Change of Control Offer; in the case of Global Notes, the Issuer will pay accrued and unpaid interest to the Change of Control Payment Date to the Holder on such date.

 

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(e)            The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date; provided, that if and for so long as the applicable series of Notes is listed on Euronext Dublin and the rules of Euronext Dublin so require, the Issuer will give notice with respect to the results of the Change of Control Offer to the Companies Announcement Office of Euronext Dublin.

 

(f)            This Section 4.19 will be applicable regardless of whether any other provisions of this Indenture are applicable.

 

(g)           The Issuer will not be required to make a Change of Control Offer with respect to a series of Notes following a Change of Control Repurchase Event if (i) an Affiliate of the Issuer or a third party makes the Change of Control Offer for such series of Notes in the manner, at the times and otherwise in compliance with this Section 4.19 applicable to a Change of Control Offer made by the Issuer and purchases all Notes of the applicable series validly tendered and not withdrawn under such Change of Control Offer or (ii) a notice of redemption for all of the outstanding Notes of such series has been given pursuant to this Indenture as described in Section 3.4 unless and until there is a default in the payment of the applicable redemption price, plus accrued and unpaid interest to the proposed redemption date. Notwithstanding the foregoing, a Change of Control Offer may be made in advance of a Change of Control Repurchase Event, conditional upon the Change of Control, so long as a definitive agreement has been executed that contains terms and provisions that would otherwise result in a Change of Control upon completion of the transactions contemplated thereby.

 

SECTION 4.20. Additional Amounts. (a) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on the Notes or the Guarantees is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Paying Agent that such payment of principal, premium, if any, or interest on the Notes (whether or not in the form of Definitive Notes) or any Guarantee shall be made to the Holders with withholding or deduction (but only in case such payment shall be made with such withholding or deduction) for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of Taxes is then required by law.

 

(b)            If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes or the Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the relevant series of Notes (the “Additional Amounts”).

 

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(c)            The Payor and each Guarantor or successor Guarantor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon written request, the Payor and each Guarantor will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Notes.

 

(d)            Wherever in this Indenture or the Notes there are mentioned, in any context, (i) the payment of principal, (ii) purchase prices in connection with a purchase of Notes, (iii) interest or (iv) any other amount payable on or with respect to the Notes or the Guarantees, such reference shall be deemed to include payment of Additional Amounts as described in this Indenture and the Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

(e)            The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without gross negligence, willful default or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.20.

 

(f)            Obligations under this Section 4.20 will survive any termination, defeasance or discharge of this Indenture.

 

SECTION 4.21. Payment of Non-Income Taxes and Similar Charges. The Payor and each Guarantor or successor Guarantor will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of any Notes or any other document or instrument referred to therein (other than a transfer of the Notes subsequent to the initial offering of the Original Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside a Relevant Taxing Jurisdiction, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes. Obligations under this Section 4.21 will survive any termination, defeasance or discharge of this Indenture.

 

ARTICLE V

 

SUCCESSOR CORPORATION

 

SECTION 5.1. Consolidation, Merger or Sale of Assets. The Issuer may not, directly or indirectly: (a) consolidate or merge with or into another Person (whether or not the Issuer is the surviving corporation); or (b) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:

 

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(1)            either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, conveyance, lease or other disposition shall have been made (the “Successor Issuer”) is a company organized or existing under the laws of the United States, any state thereof or the District of Columbia, or any member of the European Union on the Issue Date;

 

(2)            the Successor Issuer (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee;

 

(3)            immediately after such transaction, no Default or Event of Default exists; and

 

(4)            each Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations in respect of this Indenture and the Notes (unless such Guarantee shall be released in connection with the transaction and otherwise in compliance with this Indenture).

 

The Covenant Parent may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Covenant Parent is the surviving corporation); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Covenant Parent and its Subsidiaries taken as a whole, in one or more related transactions, to another Person (other than the Issuer or another Guarantor) unless:

 

(1)            the Covenant Parent (or the Person formed by or surviving any such consolidation or merger (if other than the Covenant Parent) or to which such sale, assignment, transfer, conveyance, lease or other disposition shall have been made (the “Covenant Parent Successor”)) shall have by supplemental indenture confirmed its Guarantee shall continue to apply to the Issuer’s obligations in respect of this Indenture and the Notes or, in the case of a Covenant Parent Successor, expressly assumed all the obligations of the Covenant Parent under its Guarantee under this Indenture and the Notes;

 

(2)            either (i) the Covenant Parent is the surviving company; or (ii) the Covenant Parent Successor is a company organized or existing under the laws of the United States, any state thereof or the District of Columbia, or any member of the European Union on the Issue Date; and

 

(3)            immediately after such transaction, no Default or Event of Default exists.

 

For purposes of this Section 5.1, the sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of a Person, which properties and assets, if held by such Person instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Person on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Person.

 

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SECTION 5.2. Successor Corporation Substituted. If any consolidation, merger, sale, assignment, transfer, conveyance or disposition as described in Section 5.1 is consummated without causing an Event of Default, then the Successor Issuer or Covenant Parent Successor, as applicable, will succeed to, and be substituted for, and may exercise every right and power of, the Issuer, in the case of a Successor Issuer or the Covenant Parent, in the case of a Covenant Parent Successor, under this Indenture with the same effect as if such Successor Issuer had been named as the Issuer herein or as if such Covenant Parent Successor had been named as Covenant Parent herein, as applicable, and thereafter (except in the case of a sale, assignment, transfer, lease, conveyance or other disposition) the predecessor corporation will be relieved of all further obligations and covenants under this Indenture and the Notes.

 

ARTICLE VI

 

DEFAULT AND REMEDIES

 

SECTION 6.1. Events of Default. Whenever used herein with respect to a series of Notes issued under this Indenture, “Event of Default” means any one of the following events which shall have occurred and be continuing:

 

(1)            a default for 30 days in the payment when due of interest on, including any Additional Interest pursuant to the Registration Rights Agreement, or Additional Amounts with respect to, such series of Notes;

 

(2)            a default in payment when due of the principal of, or premium, if any, on such series of Notes (including in the case of a special mandatory redemption required pursuant to Section 3.8);

 

(3)            a failure by the Covenant Parent or any of its Subsidiaries for 90 days after notice by the Trustee or by the Holders of at least 25% in principal amount of such series of Notes to comply with any of the other agreements in this Indenture;

 

(4)            a default under any mortgage, indenture or instrument under which there is issued and outstanding any Indebtedness for money borrowed by the Covenant Parent or any of its Subsidiaries (or the payment of which is guaranteed by the Covenant Parent or any of its Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the date of this Indenture, if that default:

 

(a)            is caused by a failure to pay principal at the final stated maturity of such Indebtedness (after giving effect to any applicable grace period provided in the Indebtedness) (a “Payment Default”); or

 

(b)            results in the acceleration of such Indebtedness prior to its express maturity;

 

and in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $200.0 million or more; or

 

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(5)            (A) a court having jurisdiction in the premises having entered a decree or order for (i) relief in respect of the Issuer, the Covenant Parent or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Covenant Parent and its Subsidiaries), would constitute a Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) appointment of a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer, the Covenant Parent or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Covenant Parent and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer, the Covenant Parent or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Covenant Parent and its Subsidiaries), would constitute a Significant Subsidiary or (iii) the winding up or liquidation of the affairs of the Issuer, the Covenant Parent or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Covenant Parent and its Subsidiaries), would constitute a Significant Subsidiary and, in each case, such decree or order remaining unstayed and in effect for a period of 30 consecutive days; or (B) the Issuer, the Covenant Parent or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Covenant Parent and its Subsidiaries), would constitute a Significant Subsidiary (i) having commenced a voluntary case (including taking any action for the purpose of winding up) under any applicable bankruptcy, insolvency, examination, court protection or other similar law now or hereafter in effect, or consented to the entry of an order for relief in an involuntary case under any such law, (ii) having consented to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, examiner, administrator, sequestration or similar official of the Issuer, the Covenant Parent or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Covenant Parent and its Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer, the Covenant Parent or any of its Significant Subsidiaries or a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements of the Covenant Parent and its Subsidiaries), would constitute a Significant Subsidiary or (iii) having effected any general assignment for the benefit of creditors.

 

SECTION 6.2. Acceleration. In the case of an Event of Default arising under Section 6.1(5) hereof, the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all outstanding Notes shall become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee (upon request of Holders of at least 25% in principal amount of Notes of the applicable series subject to the Event of Default then outstanding) shall, by notice in writing to the Issuer, or the Holders of at least 25% in principal amount of the then outstanding Notes of the applicable series may, by notice in writing to the Issuer and the Trustee, declare all Notes of such series to be due and payable, and any such notice shall specify the respective Event of Default and that such notice is a “notice of acceleration”, and the principal of, premium, if any, accrued and unpaid interest, if any, and Additional Amounts, if any, on all outstanding Notes of such series shall become immediately due and payable. In the event of any Event of Default specified in Section 6.1(4), such Event of Default and all consequences thereof (including, without limitation, any acceleration or resulting payment default) shall be annulled, waived and rescinded automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose, (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged, (y) the creditors on such Indebtedness have rescinded or waived the acceleration, notice or action, as the case may be, giving rise to such Event of Default or (z) if the default that is the basis for such Event of Default has been cured.

 

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SECTION 6.3. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or, premium, if any, interest or Additional Amounts, if any, on the Notes of the applicable series subject to the Event of Default or to enforce the performance of any provision of such Notes or this Indenture.

 

SECTION 6.4. The Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto.

 

SECTION 6.5. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Notes is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent or subsequent assertion or employment of any other appropriate right or remedy.

 

SECTION 6.6. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Notes.

 

SECTION 6.7. Waiver of Past Defaults. Subject to Section 9.2, at any time after a declaration of acceleration with respect to any series of Notes as described in Section 6.2, the Holders of at least a majority in aggregate principal amount of the outstanding Notes of such series by written notice to the Trustee, may, on behalf of the Holders of all the Notes of such series, waive any existing Default or Event of Default (except with respect to a continuing Default or Event of Default in the payment of principal, premium, interest, Additional Amounts, if any, and other monetary obligations on such Notes) and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, interest, Additional Amounts, if any, and other monetary obligations on such Notes that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. Such waiver shall not excuse a continuing Default or Event of Default in the payment of interest, premium, if any, principal or Additional Amounts, if any, on such Notes held by a non-consenting Holder, or in respect of a covenant or a provision which cannot be amended or modified without the consent of each Holder affected. The Issuer shall deliver to the Trustee an Officers’ Certificate stating that the requisite percentage of Holders has consented to such waiver and attaching copies of such consents. When a Default or Event of Default is waived with respect to any series of Notes, it is cured and ceases with respect to such series of Notes.

 

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SECTION 6.8. Control by Majority. Subject to Section 2.10, the Holders of not less than a majority in principal amount of the outstanding Notes of any series may, by written notice to the Trustee, direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it with respect to such series of Notes. Subject to Section 7.1, however, the Trustee may refuse to follow any direction that conflicts with any law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of another Holder of Notes of such series, or that would involve the Trustee in liability or expense; provided, however, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Prior to taking any action under this Indenture, the Trustee will be entitled to indemnification or security to its satisfaction against all losses, liabilities, costs and expenses incurred by it in taking or not taking such action.

 

SECTION 6.9. Limitation on Suits. Except to enforce the right to receive payment of principal, premium, if any, interest when due and Additional Amounts, if any, no Holder may pursue any remedy with respect to this Indenture or the Notes of any series, unless:

 

(1)            such Holder has previously given the Trustee notice that an Event of Default is continuing;

 

(2)            Holders of at least 25% in principal amount of the outstanding Notes of such series have requested the Trustee to pursue the remedy;

 

(3)            such Holders have offered the Trustee indemnity or security to its satisfaction, against any loss, liability or expense;

 

(4)            the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of such security or indemnity; and

 

(5)            the Holders of a majority in principal amount of the outstanding Notes of such series have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.

 

SECTION 6.10. Collection Suit by Trustee. If an Event of Default in payment of principal, premium, if any, interest or Additional Amounts, if any, specified in clause (1) or clause (2) of Section 6.1 occurs and is continuing with respect to a series of Notes, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or any other obligor on such series of Notes for the whole amount of principal and accrued interest remaining unpaid and Additional Amounts, if any, thereon and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6.

 

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SECTION 6.11. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or its property or other obligor on the Notes, its creditors and its property and shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and any custodian in any such judicial proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, accountants and experts, and any other amounts due the Trustee under Section 7.6 hereof 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 which the Holders of the Notes of the applicable series may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

 

SECTION 6.12. Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:

 

First: to the Trustee, the Agents and their agents and attorneys for amounts due under Section 7.6, including payment of all compensation, fees, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second: to Holders for amounts due and unpaid on the Notes of the applicable series for principal, premium, if any, interest and Additional Amounts, if any, ratably, without preference or priority of any kind (including between different series of Notes if more than one series of Notes is affected), according to the amounts due and payable on such series of Notes for principal, premium, if any, interest and Additional Amounts, if any, respectively; and

 

Third: to the Issuer or any other obligor on the Notes, as their interests may appear, or as a court of competent jurisdiction may direct.

 

The Trustee, upon prior notice to the Issuer, may fix a record date and a payment date for any payment to Holders pursuant to this Section 6.12; provided that the failure to give any such notice shall not affect the establishment of such record date or payment date for Holders pursuant to this Section 6.12.

 

SECTION 6.13. Restoration of Rights and Remedies. If the Trustee or any Holder of any Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders of the applicable series of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of the applicable series of Notes shall continue as though no such proceeding had been instituted.

 

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SECTION 6.14. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes of any series.

 

SECTION 6.15. Additional Payments. In the case of any Event of Default occurring by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Issuer in bad faith with the intention of avoiding payment of the premium that the Issuer would have had to pay if the Issuer then had elected to redeem a series of Notes pursuant to the optional redemption provisions of this Indenture or was required to repurchase the Notes of a series, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of such series of Notes.

 

SECTION 6.16. Rights of Holders To Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of the principal of or premium, if any, or interest, if any, on such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes shall not be impaired or affected without the consent of such Holder.

 

ARTICLE VII

 

TRUSTEE

 

SECTION 7.1. Duties of Trustee. (a) If an Event of Default of which a Trust Officer of the Trustee has received written notice 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 their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request of any of the Holders of Notes, unless they shall have offered to the Trustee indemnity or security to its satisfaction against any loss, liability, cost or expense.

 

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(b)            Except during the continuance of an Event of Default of which a Trust Officer of the Trustee has received written notice:

  

(1)            The Trustee and the Agents will perform only those duties as are specifically set forth herein and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Agents.

 

(2)            In the absence of bad faith on their part, the Trustee and the Agents may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions and such other documents delivered to them pursuant to Section 11.3 furnished to the Trustee or Agent and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are required to be furnished to the Trustee or the Agents, the Trustee or the Agents, as applicable, shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

(c)            The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own bad faith or willful misconduct, except that:

 

(1)            This paragraph does not limit the effect of subsection (b) of this Section 7.1.

 

(2)            Neither the Trustee nor any Agent shall be liable for any error of judgment made in good faith by a Trust Officer of such Trustee or Agent, unless it is proved that the Trustee or such Agent 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 of the Holders of a majority in aggregate principal amount of the outstanding Notes of any series, determined as provided herein, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Notes of such series.

 

(d)            No provision of this Indenture shall require the Trustee or any Agent to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties hereunder or to take or omit to take any action under this Indenture or take any action at the request or direction of Holders if it shall have reasonable grounds for believing that repayment of such funds is not assured to it or it does not receive an indemnity or security satisfactory to it in its sole discretion against such risk, liability, loss, fee or expense which might be incurred by it in compliance with such request or direction.

 

(e)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to subsections (a), (b), (c) and (d) of this Section 7.1.

 

(f)            Neither the Trustee nor the Agents shall be liable for interest on any money received by it except as the Trustee and any Agent may agree in writing with the Issuer. Money held by the Trustee in trust or any Agent need not be segregated from other funds except to the extent required by law.

 

(g)            Any provision hereof relating to the conduct or affecting the liability of or affording protection to the Trustee or Agent shall be subject to the provisions of this Section 7.1.

 

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(h)            The rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified, are extended to, and shall be enforceable by the Trustee in each of its capacities it which it may serve, and to each Agent, custodian and other person employed to act hereunder.

 

SECTION 7.2. Rights of Trustee. Subject to Section 7.1:

 

(a)            The Trustee and each Agent may rely conclusively on and shall be protected from acting or refraining from acting based upon any document believed by them to be genuine and to have been signed or presented by the proper person. Neither the Trustee nor any Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document, but the Trustee or its Agent, as the case may be, in its discretion, may make reasonable further inquiry or investigation into such facts or matters stated in such document and if the Trustee or its Agent as the case may be, shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, at reasonable times during normal business hours, personally or by agent or attorney. The Trustee shall not be deemed to have notice or any knowledge of any matter (including Defaults or Events of Default) unless a Trust Officer assigned to and working in the Trustee’s Trust & Security Services office has actual knowledge thereof or unless written notice thereof is received by the Trustee, Attention: Trust & Agency Services and such notice references the Notes generally, the Issuer or this Indenture.

 

(b)            Any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate or Issuer Order and any resolution of the Board of Directors of the Issuer, as the case may be, may be sufficiently evidenced by a Board Resolution.

 

(c)            Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both, which shall conform to the provisions of Sections 11.3 and 11.4. Neither the Trustee nor any Agent shall be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.

 

(d)            The Trustee and any Agent may act through their attorneys and agents and shall not be responsible for the misconduct or negligence of any agent (other than an agent who is an employee of the Trustee or such Agent) appointed with due care.

 

(e)            The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers conferred upon it by this Indenture; provided, however, that the Trustee’s conduct does not constitute willful misconduct, gross negligence or bad faith.

 

(f)            The Trustee or any Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

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(g)            Subject to Section 9.2, the Trustee may (but shall not be obligated to), without the consent of the Holders, give any consent, waiver or approval required by the terms hereof, but shall not without the consent of the Holders of not less than a majority in aggregate principal amount of the Notes of each affected series at the time outstanding (i) give any consent, waiver or approval or (ii) agree to any amendment or modification of this Indenture, in each case, that shall have a material adverse effect on the interests of any Holder. The Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any consent, waiver, approval, amendment or modification shall have a material adverse effect on the interests of any Holder.

 

SECTION 7.3. Individual Rights of Trustee. The Trustee or any Agent in its respective individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or its respective Affiliates with the same rights it would have if it were not the Trustee or an Agent. However, in the event that the Trustee acquires any conflicting interest within the meaning of Section 310(b)(1) of the TIA, it must eliminate such conflict within 90 days or resign; provided, however, that there shall be excluded from the operation of Section 310(b)(1) of the TIA any indenture or indentures under which other securities or certificates of interest of participation in other securities of the Issuer are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the TIA are met, other than the fact that such indentures are not described herein. Any Agent may do the same with like rights. The Trustee must comply with Sections 7.9 and 7.10.

 

SECTION 7.4. Trustee’s Disclaimer. The Trustee and the Agents shall not be responsible for and make no representation as to the validity, effectiveness, correctness or adequacy of this Indenture, any Guarantee or the offering materials related to this Indenture or the Notes; it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision hereof; it shall not be responsible for the use or application of any money received by any Agent and it shall not be responsible for any statement or recital herein of the Issuer, or any document issued in connection with the sale of Notes or any statement in the Notes other than the Trustee’s certificate of authentication.

 

SECTION 7.5. Notice of Default. If an Event of Default with respect to any series of Notes occurs and is continuing and a Trust Officer of the Trustee has received written notice of such event, the Trustee shall mail to each Holder of Notes of such series, as their names and addresses appear on the list of Holders described in Section 2.5, notice of the uncured Default or Event of Default within 90 days after the Trustee receives such notice. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, interest or Additional Amounts, if any, on any Note, including the failure to make payment on the Change of Control Payment Date pursuant to a Change of Control Offer, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interest of the Holders of Notes of such series.

 

SECTION 7.6. Compensation and Indemnity. The Issuer shall pay to the Trustee and the Agents from time to time such reasonable compensation as the Issuer and the Trustee shall from time to time agree upon in writing for its acceptance of this Indenture and services hereunder. The Trustee’s and the Agents’ compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and the Agent upon request for all reasonable disbursements, expenses and advances (including reasonable fees and expenses of counsel) incurred or made by it in addition to the compensation for their services, except any such disbursements, expenses and advances as may be attributable to the Trustee’s or any Agent’s gross negligence, willful misconduct or bad faith. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and Agents’ accountants, experts and counsel and any taxes or other expenses incurred by a trust created pursuant to Section 8.4 hereof.

 

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The Issuer agrees to pay the reasonable fees and expenses of the Trustee’s legal counsel, White & Case LLP, in connection with its review, preparation and delivery of this Indenture and related documentation.

 

The Issuer shall indemnify each of the Trustee, any predecessor Trustee and the Agents (which, for purposes of this paragraph, include such Trustee’s and Agents’ affiliates, officers, directors, employees and agents) and in any other capacity the Trustee may serve hereunder for, and hold them harmless against, any and all loss, damage, claim, expense or liability including taxes (other than taxes based on the income of the Trustee) incurred by the Trustee or an Agent without gross negligence, willful misconduct or bad faith on its part, as determined by a court of competent jurisdiction in a final non-appealable decision in connection with acceptance of administration of this trust and performance of its duties under this Indenture, including the reasonable expenses and attorneys’ fees and expenses of defending itself against any claim of liability arising hereunder. The Trustee and the Agents shall notify the Issuer promptly of any claim asserted against the Trustee or such Agent for which it may seek indemnity. However, the failure by the Trustee or the Agent to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee or such Agent shall cooperate in the defense (and may employ its own counsel reasonably satisfactory to the Trustee) at the Issuer’s expense. The Trustee or such Agent may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made without its written consent, which consent shall not be unreasonably withheld.

 

To secure the Issuer’s payment obligations in this Section 7.6, the Trustee and the Agents shall have a senior Lien prior to the Notes against all money or property held or collected by the Trustee and the Agents, in its capacity as Trustee or Agent, except money or property held in trust to pay principal or premium, if any, Additional Amounts, if any, or interest on particular Notes.

 

The Issuer’s obligations under this Section 7.6 and any claim arising hereunder shall survive the termination of this Indenture, the resignation or removal of any Trustee or Agent, the discharge of the Issuer’s obligations pursuant to Article VIII and any rejection or termination under any Bankruptcy Law.

 

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SECTION 7.7. Replacement of Trustee. The Trustee and any Agent may resign at any time upon 30 days’ prior written notice to the Issuer. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee or Agent by so notifying the Issuer and the Trustee or such Agent, as the case may be, in writing and may appoint a successor trustee or agent with the Issuer’s consent. A resignation or removal of the Trustee or any Agent and appointment of a successor Trustee or Agent, as the case may be, shall become effective only upon the successor Trustee’s or Agent’s acceptance of appointment, as the case may be, as provided in this section. The Issuer may remove the Trustee or an Agent if:

 

(1)            the Trustee or Agent, as the case may be, fails to comply with Section 7.9;

 

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

 

(3)            a receiver or other public officer takes charge of the Trustee or Agent, as the case may be, or its respective property; or

 

(4)            the Trustee or Agent, as the case may be, becomes incapable of acting with respect to its duties hereunder.

 

If the Trustee or an Agent resigns or is removed or if a vacancy exists in the office of Trustee or Agent for any reason, the Issuer shall notify each Holder of such event and shall promptly appoint a successor Trustee or Agent, as the case may be. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may, with the Issuer’s consent, appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.

 

A successor Trustee or Agent, as the case may be, shall deliver a written acceptance of its appointment to the retiring Trustee or Agent and to the Issuer. Immediately after that, the retiring Trustee or Agent, as the case may be, shall transfer, after payment of all sums then owing to the Trustee or Agent, as the case may be, pursuant to Section 7.6, all property held by it as Trustee or Agent to the successor Trustee or Agent, subject to the Lien provided in Section 7.6, the resignation or removal of the retiring Trustee or Agent, as the case may be, shall become effective, and the successor Trustee or Agent, as the case may be, shall have all the rights, powers and duties of the Trustee or Agent under this Indenture. A successor Trustee or Agent shall mail notice of its succession to each Holder.

 

If a successor Trustee or Agent does not take office within 60 days after the retiring Trustee or Agent resigns or is removed, (i) the retiring Trustee or Agent (as the case may be), the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee or Agent or (ii) the retiring Trustee or Agent may appoint a successor Trustee or Agent, as applicable, at any time prior to the date on which a successor Trustee or Agent takes office, provided that such appointment shall be reasonably satisfactory to the Issuer.

 

If the Trustee or Agent 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 or Agent, as the case may be, and the appointment of a successor thereto.

 

Notwithstanding replacement of the Trustee or Agent pursuant to this Section 7.7, the Issuer’s obligations under Section 7.6 shall continue for the benefit of the retiring Trustee or Agent, as the case may be, and the Issuer shall pay to any replaced or removed Trustee or Agent all amounts owed under Section 7.6 upon such replacement or removal.

 

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SECTION 7.8. Successor Trustee by Merger, etc. If the Trustee or Agent consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall, if such resulting, surviving or transferee corporation is otherwise eligible hereunder, be the successor Trustee. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by consolidation, merger or conversion to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

 

SECTION 7.9. Eligibility; Disqualification. There will at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities. The Trustee (together with its corporate parent) shall have a combined capital and surplus of at least $100.0 million as set forth in the most recent applicable published annual report of condition. The Trustee shall not be deemed to have a conflict of interest under or in respect of its duties under this Indenture except and to the extent provided for in Section 310(b)(1) of the TIA; provided, however, that there shall be excluded from the operation of Section 310(b)(1) of the TIA any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Issuer are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the TIA are met, other than the fact that such indentures are not described herein.

 

SECTION 7.10. Disqualification; Conflicting Interests. Within 90 days after becoming aware that a material conflict of interest exists between the Trustee’s role as a trustee and any other capacity, the Trustee shall either (i) eliminate such conflict of interest or (ii) resign from office; provided, however, that this Indenture, the Notes and the Guarantees shall remain valid notwithstanding a material conflict of interest of the Trustee.

 

SECTION 7.11. Preferential Collection of Claims Against Issuer. The Trustee shall comply with Section 311(a) of the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the TIA to the extent indicated therein.

 

SECTION 7.12. Force Majeure. In no event shall the Trustee or Agent, in each of its capacities hereunder, be liable for any failure or delay in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, epidemics, pandemics, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo and government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services or the obligations contemplated by this Indenture.

 

SECTION 7.13. Consequential Loss. Notwithstanding anything to the contrary in this Indenture, in no event shall the Trustee or Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of such loss or damage and regardless of the form of action.

 

SECTION 7.14. Reports by Trustee to Holders. If required by Section 313(a) of the TIA, within 60 days after April 3 of any year, commencing April 3, 2025, the Trustee shall transmit to each Holder a brief report dated as of such date that complies with Section 313(a) of the TIA (but if no event described in Section 313(a) of the TIA has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with Section 313(b)(2) of the TIA. The Trustee shall also transmit all reports as required by Section 313(c) of the TIA and comply with Section 313(d) of the TIA.

 

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ARTICLE VIII

 

SATISFACTION AND DISCHARGE OF INDENTURE

 

SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, with respect to the Notes of any series, elect to have either Section 8.2 or 8.3 be applied to all outstanding Notes of such series upon compliance with the conditions set forth below in this Article VIII.

 

SECTION 8.2. Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.2 with respect to a series of Notes, the Issuer shall be deemed to have been discharged from its obligations with respect to the outstanding Notes of such series and the Guarantors shall be deemed to have been discharged from their obligations with respect to their Guarantees of the Notes of such series, in each case on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged all the obligations relating to the outstanding Notes of the applicable series and such Notes shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.6, Section 8.8 and the other Sections of this Indenture referred to below in this Section 8.2, and to have satisfied all of their other obligations under such Notes, the Guarantees and this Indenture and cured all then existing Events of Default (in each case with respect to such series of Notes)(and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:

 

(1)            the rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, interest and Additional Amounts, if any, on such Notes when such payments are due (including on a Redemption Date) from the trust created pursuant to this Indenture;

 

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

 

(3)            the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s and the Guarantors’ obligations in connection therewith set forth in Article VII hereof; and

 

(4)            this Article VIII and the obligations set forth in Section 8.6 hereof.

 

Subject to compliance with this Article VIII, the Issuer may exercise its option under Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 with respect to the applicable series of Notes. If the Issuer exercises its Legal Defeasance option with respect to a series of Notes, payment of the Notes of such series may not be accelerated because of an Event of Default.

 

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SECTION 8.3. Covenant Defeasance. Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.3 with respect to a series of Notes, the Issuer and the Guarantors shall be released from any obligations under the covenants contained in Sections 4.3, 4.8, 4.10 and 4.19 hereof with respect to the outstanding Notes of such series on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”) and the Notes of such series 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 the purposes hereof, such Covenant Defeasance means that, (i) with respect to the outstanding Notes of the applicable series, the Issuer and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant with respect to such series, 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 (ii) payment on the Notes of such series may not be accelerated because of an Event of Default specified in clause (3) (insofar as it relates to Sections 4.3, 4.8, 4.10 and 4.19) and (4) of Section 6.1.

 

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 of a series:

 

(1)            the Issuer must irrevocably deposit with the Trustee (or such other entity designated or appointed by the Trustee for this purpose), in trust, for the benefit of the Holders of the Notes of the applicable series, cash in U.S. dollars in such amounts as will be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay the principal of, interest, premium and Additional Amounts, if any, on the outstanding Notes of the applicable series on the stated maturity or on the applicable redemption date, as the case may be, and the Issuer must specify whether such Notes are being defeased to maturity or to a particular redemption date;

 

(2)            in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee confirming that (A) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes of the applicable series will not recognize income, gain or loss for United States federal income tax purposes as a result of such Legal Defeasance and will be subject to United States 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;

 

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(3)            in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee confirming that the Holders of the outstanding Notes of the applicable series will not recognize income, gain or loss for United States federal income tax purposes as a result of such Covenant Defeasance and will be subject to United States 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 or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);

 

(5)            the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders of such series of Notes over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and

 

(6)            the Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel reasonably acceptable to the Trustee and in form and substance reasonably satisfactory to the Trustee, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

SECTION 8.5. Satisfaction and Discharge of Indenture. This Indenture will be discharged and will cease to be of further effect as to all Notes of a series issued hereunder when:

 

(1)            either (i) all Notes of such series that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Issuer) have been delivered to the Trustee for cancellation; or (ii) all Notes of such series that have not been delivered to the Trustee or the Registrar for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable at their stated maturity within one year, or if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee, and the Issuer has irrevocably deposited with the Trustee (or such other entity designated or appointed by the Trustee for this purpose), in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes of such series not delivered to the Trustee or the Registrar for cancellation for principal, premium and Additional Amounts, if any, and accrued interest to the date of maturity or redemption;

 

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(2)            no Default or Event of Default with respect to such series of Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit;

 

(3)            the Issuer and each Guarantor has paid or caused to be paid all sums payable by it under this Indenture with respect to such series of Notes; and

 

(4)            the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes of that series at maturity or the redemption date, as the case may be.

 

In addition, the Issuer must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.

 

SECTION 8.6. Survival of Certain Obligations. Notwithstanding the satisfaction and discharge of this Indenture and of the Notes and the Guarantees (in each case with respect to any series of Notes) referred to in Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Issuer, each Guarantor and the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 4.1, 4.2, 4.9, 4.20, 4.21, Article VII, Article VIII and Section 11.11 shall survive until the Notes of such series are no longer outstanding, and thereafter the obligations of the Issuer and the Trustee under Articles VII and VIII shall survive. Nothing contained in this Article VIII shall abrogate any of the obligations or duties of the Trustee under this Indenture.

 

SECTION 8.7. Acknowledgment of Discharge by Trustee. Subject to Section 8.10, after (i) the conditions of Section 8.4 or 8.5 have been satisfied, (ii) the Issuer has paid or caused to be paid all other sums payable with respect to a series of Notes hereunder by the Issuer and (iii) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture with respect to such series of Notes have been complied with, the Trustee upon written request shall acknowledge in writing the discharge of all of the Issuer’s obligations under this Indenture with respect to such series of Notes except for those surviving obligations specified in this Article VIII.

 

SECTION 8.8. Application of Trust Moneys. All cash in U.S. dollars deposited with the Trustee pursuant to Section 8.4 or 8.5 in respect of Notes shall be held in trust and applied by it, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Notes of all sums due and to become due thereon for principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash deposited pursuant to Section 8.4 or 8.5 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 outstanding Notes.

 

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SECTION 8.9. Repayment to the Issuer; Unclaimed Money. The Trustee and any Paying Agent shall promptly pay or return to the Issuer upon Issuer Order any cash held by them at any time that are not required for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes for which cash has been deposited pursuant to Section 8.4 or 8.5.

 

Any money held by the Trustee in trust or any Paying Agent under this Article, for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on any Note and remaining unclaimed for two years after such principal, premium, if any, interest and Additional Amounts, if any, has become due and payable shall be paid to the Issuer upon Issuer Order or if then held by the Issuer shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer give notice to the Holders or, if and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will inform the Companies Announcement Office of Euronext Dublin or in the case of Definitive Notes, in addition to such publication, mail to Holders by first-class mail, postage prepaid, at their respective addresses as they appear on the registration books of the Registrar (and, if and so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will inform the Companies Announcement Office of Euronext Dublin), 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, any unclaimed balance of such money then remaining will be repaid to the Issuer.

 

SECTION 8.10. Reinstatement. If the Trustee or any Paying Agent is unable to apply any cash in accordance with Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until such time as the Trustee or Paying Agent is permitted to apply all such cash in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however, that if the Issuer has made any payment of interest on, premium, if any, principal and Additional Amounts, if any, of any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

 

ARTICLE IX

 

AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

SECTION 9.1. Without Consent of Holders of Notes. Notwithstanding Section 9.2 hereof, the Issuer, the Guarantors and the Trustee together may amend or supplement this Indenture, the Notes or the Guarantees without the consent of any Holder of a Note:

 

(1)            to cure any ambiguity, defect, error or inconsistency;

 

(2)            to provide for the assumption of the Issuer’s or a Guarantor’s obligations to Holders in the case of a merger or consolidation or sale of all or substantially all of the Issuer’s or such Guarantor’s assets, as applicable;

  

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(3)            to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Indenture of any Holder;

 

(4)            to allow any Guarantor to execute a supplemental indenture and/or a Guarantee with respect to the Notes;

 

(5)            to evidence and provide the acceptance of the appointment of a successor Trustee under this Indenture;

 

(6)            to conform the text of this Indenture, the Notes or the Guarantees to any provision of the “Description of Notes” in the Offering Memorandum to the extent such provision in the “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture, the Notes or the Guarantee;

 

(7)            to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture;

 

(8)            to the extent necessary to provide for the granting of a Lien to secure the Notes and/or any Guarantee as contemplated under Section 4.10 hereof; or

 

(9)            to effect or maintain the qualification of this Indenture under the TIA.

 

Notwithstanding anything to the contrary in the paragraph above, in order to effect an amendment authorized by clause (4) above, it shall only be necessary for the supplemental indenture providing for the accession of such additional Guarantor to be duly authorized and executed by the Issuer, such additional Guarantor and the Trustee. Any other amendments permitted by this Indenture need only be duly authorized and executed by Issuer and the Trustee.

 

Without the consent of the Holders of at least 66 2/3% in aggregate principal amount of the Notes then outstanding of each affected series, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder) release any Guarantor from any of its obligations under its Guarantee or this Indenture with respect to such affected series of Notes, except in accordance with the terms of this Indenture.

 

Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture which adversely affects its own rights, duties or immunities hereunder or otherwise.

 

For so long as the Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice to the Companies Announcement Office of Euronext Dublin of any of the foregoing amendments, supplements and waivers and provide, if necessary, a supplement to the Offering Memorandum setting forth reasonable details in connection with any such amendments, supplements or waivers.

 

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SECTION 9.2. With Consent of Holders of Notes. The Issuer, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Guarantees with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding of each series affected by such amendment or supplement (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), and, subject to Section 6.7, any existing Default, an Event of Default or its consequences or compliance with any provision of this Indenture, the Notes or the Guarantees may be waived with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding of each series affected by such waiver (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes). However, 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 the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

 

(2)            reduce the principal of or change the fixed maturity of any Note;

 

(3)            reduce the rate of or change the time for payment of interest on any Note;

 

(4)            reduce the premium or amount payable upon the redemption of any Note or change the time at which any Note may be redeemed as described in Paragraphs 7 and 8 of the relevant series of Notes;

 

(5)            waive a Default or Event of Default in the payment of principal of, or interest, premium or Additional Amounts, if any, on the Notes (except a rescission of acceleration of such Notes by the Holders of at least a majority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration);

 

(6)            make any Note payable in money other than that stated in the Notes;

 

(7)            make any change in the provisions of this Indenture relating to the rights of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes or any guarantee in respect thereof;

 

(8)            waive a redemption payment with respect to any Note (other than a payment required by Section 4.19 hereof);

 

(9)            make any change in the provisions of this Indenture described in Section 4.20 hereof that adversely affects the rights of any Holder of such Notes or amends the terms of such Notes in a way that would result in a loss of an exemption from any of the Taxes described thereunder or an exemption from any obligation to withhold or deduct Taxes so described thereunder unless the Payor agrees to pay Additional Amounts, if any, in respect thereof; or

 

(10)            make any change in the preceding amendment and waiver provisions.

 

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Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.5, the Trustee shall join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture adversely affects the Trustee’s own rights, duties or immunities hereunder or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. It shall not be necessary for the consent of the Holders of Notes 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. After an amendment, supplement or waiver under this Section becomes effective, the Issuer shall mail to the Holders of Notes of each affected series a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.

 

After an amendment, supplement or waiver under the foregoing paragraph becomes effective, the Issuer shall, in the case of Definitive Notes, mail to the Holders of the Notes of each affected series a notice briefly describing the amendment, supplement or waiver. However, the failure to give such notice to all Holders of the Notes of each affected series, or any defect therein, will not in any way impair or affect the validity of such amended or supplemented indenture or waiver. In addition, for so long as the Notes of any affected series are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, the Issuer will give notice of any amendment, supplement and waiver to the Companies Announcement Office of Euronext Dublin.

 

Any amendment, supplement or waiver pursuant to Section 9.1 or this Section 9.2 which modifies the rights of the Holders of Notes of any series with respect to any covenant or other provision shall be deemed not to affect the rights under this Indenture of the Holders of Notes of any other series.

 

SECTION 9.3. Revocation and Effect of Consents. (a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder of a Note.

 

(b)            The Issuer may, but shall not be obligated to, fix a record date for determining which Holders of the Notes must consent to such amendment, supplement or waiver. If the Issuer fixes a record date, the record date shall be fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of Notes furnished to the Trustee prior to such solicitation pursuant to Section 2.5 or (ii) such other date as the Issuer shall designate.

 

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SECTION 9.4. Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes of a series 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 shall, at the cost and expense of the Issuer, execute any amendment, supplement or waiver authorized pursuant to this Article IX; provided, however, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which adversely affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive indemnity reasonably satisfactory to it, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that (i) the execution of any amendment, supplement or waiver authorized pursuant to this Article IX is authorized or permitted by this Indenture and (ii) subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws affecting the rights of creditors generally and to the principles of equity, whether considered in a proceeding at law or in equity, constitutes the legal, valid and binding obligations of the Issuer enforceable in accordance with its terms; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

ARTICLE X

 

GUARANTEES

 

SECTION 10.1. Guarantee. (a) Subject to the provisions of Section 10.2 hereof and any other limitations under applicable law, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guarantee Obligations”). Each Guarantor further agrees (to the extent permitted by and subject to requirements under applicable law) that the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X (to the extent permitted by applicable and subject to requirements under applicable law) notwithstanding any extension or renewal of any Guarantee Obligation.

 

(b)            To the extent permitted by law, each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Guarantee Obligations and also waives notice of protest for nonpayment, including, for the avoidance of doubt, any right of subrogation in relation to the Holders in respect of any such Guarantee Obligations. Each Guarantor waives notice of any default under the Notes or the Guarantee Obligations. The obligations of each Guarantor hereunder shall not (to the extent permitted by and subject to requirements under applicable law) be affected by: (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer, any other Guarantor or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guarantee Obligations or any of them; or (e) any change in the ownership of the Issuer.

 

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(c)            Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantee Obligations.

 

(d)            Subject to the provisions of Section 10.2 hereof, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantee Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent permitted by law) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantee Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent permitted by law) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Note or any other agreement, (ii) any waiver or modification of any thereof, (iii) any default, failure or delay, willful or otherwise, in the performance of the Guarantee Obligations, or (iv) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.

 

(e)            Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest or Additional Amounts, if any, on any of the Guarantee Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization (including examinership) of the Issuer or otherwise.

 

(f)            Subject to the provisions of Section 10.2 hereof, in furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guarantee Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee for and on behalf of itself and the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantee Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantee Obligations then due and owing (but only to the extent not prohibited by law). Payments made under this guarantee shall be made to the Trustee on behalf of the Holders.

 

(g)            Each Guarantor further agrees that, as between it, on the one hand, and the Holders, on the other hand, but subject always to Section 10.2 hereof, (x) the maturity of the Guarantee Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantee Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantee Obligations, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purposes of its Guarantee.

 

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(h)            Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.

 

(i)            Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof.

 

SECTION 10.2. Limitation on Liability. (a) Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guarantee Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally or other considerations under applicable law.

 

(b)            The liability of each Guarantor under this Article X shall be limited to the extent of the limitations (if any) set out in any supplemental indenture executed by a Subsidiary providing for a Guarantee.

 

SECTION 10.3. Successors and Assigns. This Article X shall be binding upon each Guarantor and its successors and assigns and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.

 

SECTION 10.4. No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article X shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article X at law, in equity, by statute or otherwise.

 

SECTION 10.5. Modification. No modification, amendment or waiver of any provision of this Article X, nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand in the same, similar or other circumstances.

 

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SECTION 10.6. Release of Guarantor. The Guarantee of a Guarantor will be released with respect to a series of Notes:

 

(1)            in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Covenant Parent or a Subsidiary of the Covenant Parent;

 

(2)            in connection with any sale or other disposition of Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) the Covenant Parent or a Subsidiary of the Covenant Parent, if the Guarantor ceases to be a Subsidiary of the Covenant Parent as a result of the sale or other disposition;

 

(3)            upon the release or discharge of the guarantee or other obligation of such Guarantor under the Revolving Facility Agreement, or such other guarantee or other obligation that resulted in the creation of such Guarantee, except a release or discharge by or as a result of payment under such guarantee; provided that the guarantee of such Guarantor under the Existing Senior Notes has been released or is concurrently released;

 

(4)            by written notice from the Issuer to the Trustee if such Guarantor does not then guarantee any obligations under any of the Existing Senior Notes (after giving effect to Indebtedness and guarantees concurrently being released or repaid);

 

(5)            in accordance with Article IX;

 

(6)            upon the full and final payment and performance of all obligations of the Issuer and the Guarantors under this Indenture (with respect to such series) and the Notes of such series;

 

(7)            upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge of this Indenture with respect to such series of Notes as provided for in Article VIII; or

 

(8)            by written notice from the Issuer to the Trustee so long as the Notes of that series have an Investment Grade rating from two or more Rating Agencies; provided that none of the Existing Senior Notes are guaranteed by such Guarantor (after giving effect to guarantees concurrently being released) and no Default or Event of Default shall have occurred and be continuing at the time of such written notice,

 

provided, however, that, notwithstanding the above, (i) prior to the Post-Completion Accession Date, the Guarantee of any Parent Guarantor may only be released in the case of clauses (3) (other than with respect to the Guarantees by SKG and SKA), (4) (other than with respect to the Guarantee by SKA), (5), (6) and (7) and (ii) any Guarantee by any Covenant Parent may only be released to the extent that the Ultimate Parent has provided a Guarantee of the Notes (other than any release pursuant to clauses (5), (6) and (7) above).

 

At the request of the Issuer, the Trustee shall execute and deliver an appropriate instrument evidencing such release.

 

SECTION 10.7. Execution of Supplemental Indenture for Future Guarantors. Each Subsidiary and other Person which is required to become a Guarantor pursuant to Section 4.8 or 4.9 shall promptly execute and deliver to the Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to which such Subsidiary or other Person shall become a Guarantor under this Article X and shall guarantee the Guarantee Obligations. Concurrently with the execution and delivery of such supplemental indenture, the Issuer shall deliver to the Trustee an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee and an Officers’ Certificate to the effect (i) that such supplemental indenture has been duly authorized, executed and delivered by such Subsidiary or other Person and (ii) that, subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws affecting the rights of creditors generally and to the principles of equity, whether considered in a proceeding at law or in equity, the Guarantee of such Guarantor is a valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms and to such other matters as the Trustee may reasonably request; provided that the Trustee may, in its sole discretion, waive the requirement of an Opinion of Counsel with respect to clause (i).

 

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ARTICLE XI

 

MISCELLANEOUS

 

SECTION 11.1. Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telecopier or first-class mail, postage prepaid, addressed as follows:

 

if to the Issuer or any Guarantor:

 

Attention: Secretary 

Smurfit Kappa Treasury Unlimited Company 

Beech Hill 

Clonskeagh 

Dublin 4 

Ireland 

Email address: ir@smurfitkappa.com with a copy to:

  

Attention: Robert Haak and Samuel Norris

Ropes & Gray International LLP

60 Ludgate Hill

London EC4M 7AW

United Kingdom

Facsimile: +44-20-3201-1501

 

if to the Trustee, Paying Agent, Transfer Agent or Registrar:

 

Attention: Corporates Team, Smurfit Kappa Treasury Unlimited Company,

AA6312

Deutsche Bank Trust Company Americas

1 Columbus Circle, 17th

Mail Stop: NYC01-1710

New York, NY 10019

USA

Facsimile No: (732) 578-4635

 

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Each of the Issuer and the Trustee by written notice to each other such Person may designate additional or different addresses for notices to such Person. Any notice or communication to the Issuer and the Trustee shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if telecopied; and five calendar days after mailing if sent by first class mail, postage prepaid (except that a notice of change of address and a notice to the Trustee shall not be deemed to have been given until actually received by the addressee).

 

In the case of Definitive Notes, all notices to Holders of the Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. And, so long as any of the Notes are listed on Euronext Dublin, and the rules of Euronext Dublin so require, notices will be given to the Companies Announcement Office of Euronext Dublin. Each such notice shall be deemed to have been given on the date of such publication, or, if published more than once on different dates, on the first date on which publication is made, provided that, if notices are mailed, such notice shall be deemed to have been given on the later of such publication and the seventh day after being so mailed. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to the Clearing Agency, which will give notice of such notice to the holders of beneficial interests in the Notes and all notices that are required to be delivered to Holders will be deemed delivered for purposes of this Indenture if delivered to the Clearing Agency for communication to holders of book-entry interests. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to such Person if so mailed within the time prescribed. 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. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

 

SECTION 11.2. Communications by Holders with Other Holders. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and any other person shall have the protection of Section 312(c) of the TIA.

 

SECTION 11.3. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee or an Agent to take any action under this Indenture, the Issuer shall furnish to the Trustee at the request of the Trustee:

 

(1)            an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.4) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied or complied with; and

 

(2)            an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.4) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied or complied with.

 

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In any case where several matters are required to be certified by, or covered by an Opinion of Counsel of, any specified Person, it is not necessary that all such matters be certified by, or covered by the Opinion of Counsel of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an Opinion of Counsel with respect to some matters and one or more such Persons as to other matters, and any such Person may certify or give an Opinion of Counsel as to such matters in one or several documents.

 

Any certificate of an Officer of the Issuer may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such Officer knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the matters upon which his certificate is based are erroneous. Any Opinion of Counsel may be based, and may state that it is so based, insofar as it relates to factual matters, upon a certificate of, or representations by, an officer or officers of the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate 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 11.4. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

(1)            a statement that the Person making such certificate or opinion has read such covenant or condition;

 

(2)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)            a statement that, in the opinion of such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(4)            a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with, provided, however, that an issuer of an Opinion of Counsel may reasonably rely as to any matter of fact on an Officers’ Certificate or a certificate of a public official.

 

SECTION 11.5. Rules by Trustee, Paying Agent, Registrar, Transfer Agent. The Trustee, the Paying Agent, the Registrar or the Transfer Agent may make reasonable rules for its functions.

 

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SECTION 11.6. Legal Holidays. If a payment date is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.

 

SECTION 11.7. Governing Law. Each of this Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

SECTION 11.8. Submission to Jurisdiction; Appointment of Agent for Service. To the fullest extent permitted by applicable law, the Issuer and each Guarantor irrevocably submits to the non-exclusive jurisdiction of and venue in any federal or state court in the Borough of Manhattan in the City of New York, County and State of New York, United States of America, in any suit or proceeding based on or arising out of or under or in connection with this Indenture or any of the transactions contemplated hereby, and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Issuer and each Guarantor, to the fullest extent permitted by applicable law, irrevocably and fully waive the defense of an inconvenient forum to the maintenance of such suit or proceeding and hereby irrevocably designate and appoint Smurfit Kappa Packaging LLC (the “Authorized Agent”) as its authorized agent upon whom process may be served in any such suit or proceeding. The Issuer and each Guarantor represent and warrant that the Authorized Agent has accepted such appointment and irrevocably agreed to act as said agent for service of process. The Issuer and each Guarantor agree that service of process upon its Authorized Agent and written notice of said service to the Issuer or a Guarantor, mailed by first class mail or delivered to its Authorized Agent shall be deemed in every respect effective service of process upon the Issuer or such Guarantor, respectively, in any such suit or proceeding. Nothing herein shall affect the right of any person to serve process in any other manner permitted by law. The Issuer agrees that a final action in any such suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other lawful manner. Notwithstanding the foregoing, any action against the Issuer arising out of or based on this Indenture or the transactions contemplated hereby may also be instituted in any competent court in Ireland and the Issuer expressly accepts the jurisdiction of any such court in any such action. The Issuer hereby irrevocably waives, to the extent permitted by law, any immunity to jurisdiction to which it may otherwise be entitled (including immunity to pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Indenture, the Notes or the transactions contemplated hereby. The provisions of this Section 11.8 are intended to be effective upon the execution of this Indenture and the Notes without any further action by the Issuer, any Guarantor or the Trustee and the introduction of a true copy of this Indenture into evidence shall be conclusive and final evidence as to such matters.

 

SECTION 11.9. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of any of the Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

SECTION 11.10. No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, the Guarantees or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

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SECTION 11.11. Currency Indemnity. The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer and the Guarantors under or in connection with the Notes and the Guarantees, including damages. Any amount received or recovered in a currency other than U.S. dollars whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, any Guarantor or otherwise by any Holder or by the Trustee, as the case may be, in respect of any sum expressed to be due to it from the Issuer or a Guarantor will only constitute a discharge to the Issuer or the Guarantor, as applicable, to the extent of the U.S. dollar amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that U.S. dollar amount is less than the U.S. dollar amount expressed to be due to the recipient under any Note, any Guarantee or to the Trustee, the Issuer and the Guarantors will indemnify them on a joint and several basis against any loss sustained by such recipient as a result. In any event, the Issuer and the Guarantors will indemnify the recipient on a joint and several basis against the cost of making any such purchase. For the purposes of this Section 11.11, it will be sufficient for the Holder of a Note or the Trustee to certify in a satisfactory manner (indicating the sources of information used) that it would have suffered a loss had an actual purchase of U.S. dollars been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. dollar on such date had not been practicable, on the first date on which it would have been practicable, it being required that the need for a change of date be certified in the manner mentioned above). These indemnities constitute a separate and independent obligation from the Issuer’s and the Guarantors’ other obligations, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by any Holder of a Note or the Trustee and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note, any Guarantee or to the Trustee.

 

SECTION 11.12. Currency Calculation. Except as otherwise specifically set forth herein, for purposes of determining compliance with any U.S. dollar-denominated restriction herein, the U.S. dollar-equivalent amount for purposes hereof that is denominated in a non-U.S. dollar currency shall be calculated based on the relevant currency exchange rate in effect on the date such non-U.S. dollar amount is incurred or made, as the case may be.

 

SECTION 11.13. Information. For so long as any Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, copies of this Indenture will be made available through the offices of the Irish listing agent.

 

SECTION 11.14. Successors. All agreements of the Issuer and the Guarantors in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.

  

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SECTION 11.15. Counterpart Originals. All parties hereto may sign any number of copies of this Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent one and the same agreement. Facsimile, documents executed, scanned and transmitted electronically and electronic signatures, including those created or transmitted through a software platform or application, shall be deemed original signatures for purposes of this Indenture and all other related documents and all matters and agreements related thereto, with such facsimile, scanned and electronic signatures having the same legal effect as original signatures. The parties agree that this Indenture or any other related document or any instrument, agreement or document necessary for the consummation of the transactions contemplated by this Indenture or other documents related hereto or thereto (including, without limitation, addendums, amendments, notices, instructions, communications with respect to the delivery of securities or the wire transfer of funds or other communications) (“Executed Documentation”) may be accepted, executed or agreed to through the use of an electronic signature in accordance with applicable laws, rules and regulations in effect from time to time applicable to the effectiveness and enforceability of electronic signatures. Any Executed Documentation accepted, executed or agreed to in conformity with such laws, rules and regulations will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any third party electronic signature capture service providers as may be reasonably chosen by a signatory hereto or thereto. When the Trustee acts on any Executed Documentation sent by electronic transmission, the Trustee will not be responsible or liable for any losses, costs or expenses arising directly or indirectly from its reliance upon and compliance with such Executed Documentation, notwithstanding that such Executed Documentation (a) may not be an authorized or authentic communication of the party involved or in the form such party sent or intended to send (whether due to fraud, distortion or otherwise) or (b) may conflict with, or be inconsistent with, a subsequent written instruction or communication; it being understood and agreed that the Trustee shall conclusively presume that Executed Documentation that purports to have been sent by an authorized officer of a Person has been sent by an authorized officer of such Person. The party providing Executed Documentation through electronic transmission or otherwise with electronic signatures agrees to assume all risks arising out of such electronic methods, including, without limitation, the risk of the Trustee acting on unauthorized instructions and the risk of interception and misuse by third parties.

 

SECTION 11.16. Severability. In case any one or more of the provisions in this Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

SECTION 11.17. Table of Contents, Headings, etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

SECTION 11.18. Patriot Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agree to provide to the Trustee, upon their request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable Law.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of the date first written above.

 

  Very truly yours,
   
  ISSUER:
   
  SMURFIT KAPPA TREASURY
  UNLIMITED COMPANY
   
  By: /s/ Ken Bowles
    Name:   Ken Bowles
    Title:     Authorized Attorney

 

[Signature Page to the Indenture]

 

 

 

  

  IRISH GUARANTOR:
   
  SMURFIT KAPPA TREASURY
  FUNDING DESIGNATED
  ACTIVITY COMPANY
   
  By: /s/ Emer Murnane
    Name:   Emer Murnane
    Title:     Authorized Attorney

 

[Signature Page to the Indenture]

 

 

 

 

  IRISH GUARANTORS:
   
  SMURFIT KAPPA GROUP PLC
  SMURFIT KAPPA INVESTMENTS LIMITED
  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY
   
  By: /s/ Ken Bowles
    Name:   Ken Bowles
    Title:     Authorized Attorney

 

[Signature Page to the Indenture]

 

 

 

 

  DUTCH GUARANTOR:
   
  SMURFIT INTERNATIONAL B.V.
   
  By: /s/ P.J.A. Koelewijn – van Stiphout
    Name:   P.J.A. Koelewijn – van Stiphout
    Title:     Authorized Signatory

 

[Signature Page to the Indenture]

 

 

 

 

  DEUTSCHE BANK TRUST COMPANY
  AMERICAS, as Trustee, Paying Agent,
  Transfer Agent and Registrar
   
  By:  /s/ Robert Peschler
    Name:   Robert Peschler
    Title:     Vice President
   
  By: /s/ Irina Golovashchuk
    Name:   Irina Golovashchuk
    Title:     Vice President

 

[Signature Page to the Indenture]

 

 

 

 

SCHEDULE A 

SUBSIDIARY GUARANTORS

 

Name Jurisdiction Registration Number  
(or equivalent, if any)  
     
   
Smurfit Kappa Treasury Funding Designated Activity Company (previously Smurfit Kappa Treasury Funding Limited, Smurfit Capital Funding Limited and Smurfit Capital Funding Public Limited Company) Ireland 239631  
Smurfit International B.V. Netherlands 33149443  

 

A-1

 

 

SCHEDULE B 

POST-COMPLETION ADDITIONAL GUARANTORS

 

Name Jurisdiction Registration Number  
(or equivalent, if any)  
     
   
Smurfit WestRock plc Ireland 607515  
WestRock Company Delaware 6727858  
WestRock MWV, LLC Delaware N/A  
WestRock RKT, LLC Georgia N/A  
WRKCo. Inc Delaware 5688407  

 

 

B-1

 

 

EXHIBIT A-1 

TO THE INDENTURE

 

[FORM OF FACE OF GLOBAL NOTE]

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Global Securities Legend]

 

UNLESS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

  

A-1

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE GUARANTORS, OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

A-2

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) ITS ACQUISITION AND HOLDING OF SUCH NOTES OR AN INTEREST THEREIN DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) IT WILL NOT SELL OR OTHERWISE TRANSFER SUCH NOTES UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTIES IN (1) ABOVE.

  

A-3

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.200% SENIOR NOTE DUE 2030

 

  CUSIP: 
  ISIN: 

 

No. ___

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay $______ to Cede & Co. or registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on January 15, 2030.

 

Interest Payment Dates: January 15 and July 15 of each year, commencing July 15, 2024. Record Dates: January 1 and July 1 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

A-4

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA TREASURY
  UNLIMITED COMPANY
   
  By:  
    Name:   
    Title:     
   
  By:  
    Name:   
    Title:     

 

This is one of the Notes referred to
in the within-mentioned Indenture:

 

DEUTSCHE BANK TRUST COMPANY AMERICAS, 

as Authenticating Agent for

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

 

By:    
  Name:     
  Title:       

 

Dated:

 

A-5

 

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.200% SENIOR NOTE DUE 2030

 

1.    Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2030 Notes will be payable semi-annually in arrears on January 15 and July 15 of each year, commencing July 15, 2024. The Issuer will make each interest payment to the Holders of record at the close of business on the immediately preceding January 1 and July 1 of each year. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of DTC. Interest on the 2030 Notes will accrue at the rate of 5.200% per annum on the aggregate nominal amount of the 2030 Notes outstanding. Interest accruing on all 2030 Notes then outstanding shall be payable in cash. Interest on the 2030 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

If a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest (“Additional Interest”) shall accrue on this Note, in accordance with the terms of the Registration Rights Agreement. All references to any amount of “interest” payable or with respect to this Note in the Indenture or this Note shall be deemed to include any applicable Additional Interest that may be payable on the Note.

 

A-6

 

 

2.    Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

(2)            any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)            except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)            any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

  

A-7

 

 

(7)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

(8)            any Taxes imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable); any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, law, regulation or other official guidance enacted in any other jurisdiction, facilitating implementation thereof;

 

(9)            all United States backup withholding taxes;

 

(0)            any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) as amended from time to time; or

 

(1)            any combination of clauses (1) through (10) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (11) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.    Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in U.S. dollars. Immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.    Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank Trust Company Americas will act as Paying Agent and Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.    Indenture. The Issuer issued the Notes under an Indenture, dated as of April 3, 2024 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 5.200% Senior Notes due 2030 (the “2030 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

A-8

 

 

6.    Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.    Optional Redemption. Except as set forth below in this Paragraph 7 or under Paragraphs 8, 10 and 11, none of the 2030 Notes will be redeemable prior to December 15, 2029.

 

At any time prior to December 15, 2029, the Issuer may redeem the 2030 Notes at its option, in whole or in part, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (a) 100% of the principal amount thereof and (b) (i) the sum of the present values of the remaining scheduled payments if principal and interest thereon discounted to the redemption date (assuming the Notes to be redeemed are scheduled to mature on December 15, 2029) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Applicable Basis Points less (ii) interest accrued to the date of redemption, plus, in either case, accrued and unpaid interest thereon and Additional Amounts, 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).

 

On or after December 15, 2029, the Issuer may redeem the 2030 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

If and so long as the 2030 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2030 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2030 Notes that will remain outstanding following such redemption.

 

A-9

 

 

8.    Special Tax Redemption. The Issuer may, at its option, redeem the 2030 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2030 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2030 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2030 Notes would be, required to pay Additional Amounts with respect to the 2030 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2030 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2030 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2030 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2030 Notes.

 

9.    Notice of Redemption. Notice of redemption (other than a special mandatory redemption under Paragraph 10) will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of $200,000 may be redeemed only in whole. No Note of $200,000 in aggregate principal amount or less, or other than in an integral multiple of $1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

A-10

 

 

10.  Special Mandatory Redemption. If (i) the Combination is not consummated prior to March 12, 2025, (ii) the Transaction Agreement is terminated at any time prior to March 12, 2025 (other than as a result of consummating the Combination) or (iii) SKG publicly announces at any time prior to March 12, 2025 that it will no longer pursue the consummation of the Combination, then the Issuer will be required to redeem all of the outstanding Notes of each series pursuant to a special mandatory redemption at a redemption price equal to 101% of the aggregate principal amount of the Notes of such series, plus accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date. In that event, the Issuer will cause a notice of special mandatory redemption to be transmitted to each Holder of the Notes at its registered address (or delivered by means of publication via DTC) and to the Trustee not later than five Business Days after the Trigger Date, and will redeem the Notes on the Special Mandatory Redemption Date. The Special Mandatory Redemption Date will be a date selected by the Issuer and set forth in the notice of special mandatory redemption and will be no later than 20 days following the Trigger Date, but no earlier than the fifth Business Day following the day the notice of special mandatory redemption is transmitted to Holders of the Notes of the applicable series. If funds sufficient to pay the special mandatory redemption price of the Notes of a series to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee or the Paying Agent on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the Notes of that series will cease to bear interest.

 

11.  Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2030 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to $200,000 in principal amount and integral multiples of $1,000 in excess thereof) of the 2030 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2030 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2030 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

12.  [Intentionally omitted]

 

13.  Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

14.  [Intentionally omitted]

 

15.  [Intentionally omitted]

 

16.  Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of $200,000 and integral multiples of $1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

A-11

 

 

17.  Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

18.  Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

19.  Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

20.  Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

21.  Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.  Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

23.  Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.  No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

A-12

 

 

25.  Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.  Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.  CUSIPs and ISINs. The Issuer has caused CUSIPs and ISINs to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.  Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

A-13

 

 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL AMOUNT

 

The initial principal amount at maturity of this Note shall be $      . The following decreases/increases in the principal amount at maturity of this Note have been made:

 

            Total Principal    
            Amount at   Notation
    Decrease in   Increase in   Maturity   Made by
Date of   Principal   Principal   Following such   or on
Decrease/   Amount at   Amount at   Decrease/   Behalf of
Increase       Maturity       Maturity       Increase       Trustee
                 
                 
                 
                 
                 
                 
                 
                 
                 

 

 

A-14

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: $

 

Date:

 

Your Signature:                          

(Sign exactly as your name appears on the other side of this Note)

 

 

A-15

 

 

 

EXHIBIT A-2

TO THE INDENTURE

 

[FORM OF FACE OF GLOBAL NOTE]

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Global Securities Legend]

 

UNLESS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

A-16

 

 

 

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE GUARANTORS, OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

A-17

 

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) ITS ACQUISITION AND HOLDING OF SUCH NOTES OR AN INTEREST THEREIN DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) IT WILL NOT SELL OR OTHERWISE TRANSFER SUCH NOTES UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTIES IN (1) ABOVE.

 

A-18

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.438% SENIOR NOTE DUE 2034

 

CUSIP:

 

    ISIN:

 

No. ___

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay $______      to Cede & Co. or registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on April 3, 2034.

 

Interest Payment Dates: April 3 and October 3 of each year, commencing October 3, 2024. Record Dates: March 19 and September 18 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

A-19

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
     
  By:  
  Name:  
  Title:  
     
  By:  
  Name:  
  Title:  

 

This is one of the Notes referred to
in the within-mentioned Indenture:

 

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Authenticating Agent for

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

 

By:    
Name:    
Title:    
     
     
Dated:    

 

A-20

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.438% SENIOR NOTE DUE 2034

 

1.            Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2034 Notes will be payable semi-annually in arrears on April 3 and October 3 of each year, commencing October 3, 2024. The Issuer will make each interest payment to the Holders of record at the close of business on the immediately preceding March 19 and September 18 of each year. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of DTC. Interest on the 2034 Notes will accrue at the rate of 5.438% per annum on the aggregate nominal amount of the 2034 Notes outstanding. Interest accruing on all 2034 Notes then outstanding shall be payable in cash. Interest on the 2034 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

If a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest (“Additional Interest”) shall accrue on this Note, in accordance with the terms of the Registration Rights Agreement. All references to any amount of “interest” payable or with respect to this Note in the Indenture or this Note shall be deemed to include any applicable Additional Interest that may be payable on the Note.

 

2.            Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

A-21

 

 

 

(2)            any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)           except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)           any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

A-22

 

 

(7)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

(8)            any Taxes imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable); any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, law, regulation or other official guidance enacted in any other jurisdiction, facilitating implementation thereof;

 

(9)            all United States backup withholding taxes;

 

(2)            any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) as amended from time to time; or

 

(3)            any combination of clauses (1) through (10) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (11) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.             Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in U.S. dollars. Immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.             Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank Trust Company Americas will act as Paying Agent and Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.             Indenture. The Issuer issued the Notes under an Indenture, dated as of April 3, 2024 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 5.438% Senior Notes due 2034 (the “2034 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

A-23

 

 

6.             Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.             Optional Redemption. Except as set forth below in this Paragraph 7 or under Paragraphs 8, 10 and 11, none of the 2034 Notes will be redeemable prior to January 3, 2034.

 

At any time prior to January 3, 2034, the Issuer may redeem the 2034 Notes at its option, in whole or in part, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (a) 100% of the principal amount thereof and (b) (i) the sum of the present values of the remaining scheduled payments if principal and interest thereon discounted to the redemption date (assuming the Notes to be redeemed are scheduled to mature on January 3, 2034) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Applicable Basis Points less (ii) interest accrued to the date of redemption, plus, in either case, accrued and unpaid interest thereon and Additional Amounts, 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).

 

On or after January 3, 2034, the Issuer may redeem the 2034 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

If and so long as the 2034 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2034 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2034 Notes that will remain outstanding following such redemption.

 

 

A-24

 

 

8.             Special Tax Redemption. The Issuer may, at its option, redeem the 2034 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2034 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2034 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2034 Notes would be, required to pay Additional Amounts with respect to the 2034 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2034 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2034 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2034 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2034 Notes.

 

9.             Notice of Redemption. Notice of redemption (other than a special mandatory redemption under Paragraph 10) will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of $200,000 may be redeemed only in whole. No Note of $200,000 in aggregate principal amount or less, or other than in an integral multiple of $1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

A-25

 

 

10.            Special Mandatory Redemption. If (i) the Combination is not consummated prior to March 12, 2025, (ii) the Transaction Agreement is terminated at any time prior to March 12, 2025 (other than as a result of consummating the Combination) or (iii) SKG publicly announces at any time prior to March 12, 2025 that it will no longer pursue the consummation of the Combination, then the Issuer will be required to redeem all of the outstanding Notes of each series pursuant to a special mandatory redemption at a redemption price equal to 101% of the aggregate principal amount of the Notes of such series, plus accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date. In that event, the Issuer will cause a notice of special mandatory redemption to be transmitted to each Holder of the Notes at its registered address (or delivered by means of publication via DTC) and to the Trustee not later than five Business Days after the Trigger Date, and will redeem the Notes on the Special Mandatory Redemption Date. The Special Mandatory Redemption Date will be a date selected by the Issuer and set forth in the notice of special mandatory redemption and will be no later than 20 days following the Trigger Date, but no earlier than the fifth Business Day following the day the notice of special mandatory redemption is transmitted to Holders of the Notes of the applicable series. If funds sufficient to pay the special mandatory redemption price of the Notes of a series to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee or the Paying Agent on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the Notes of that series will cease to bear interest.

 

11.           Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2034 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to $200,000 in principal amount and integral multiples of $1,000 in excess thereof) of the 2034 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2034 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2034 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

12.            [Intentionally omitted]

 

13.            Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

14.            [Intentionally omitted]

 

15.            [Intentionally omitted]

 

16.            Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of $200,000 and integral multiples of $1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

A-26

 

 

17.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

18.            Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

19.            Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

20.            Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

21.            Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.            Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

23.            Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

A-27

 

 

25.            Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.            Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.            CUSIPs and ISINs. The Issuer has caused CUSIPs and ISINs to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.            Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

A-28

 

 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL AMOUNT

 

The initial principal amount at maturity of this Note shall be $      . The following decreases/increases in the principal amount at maturity of this Note have been made:

 

          Total Principal    
        Amount at   Notation
    Decrease in   Increase in   Maturity   Made by
Date of   Principal   Principal   Following such   or on
Decrease/   Amount at   Amount at   Decrease/   Behalf of
Increase   Maturity   Maturity   Increase   Trustee
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 

 

A-29

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: $

 

Date:

 

Your Signature:                             

(Sign exactly as your name appears on the other side of this Note)

 

A-30

 

 

EXHIBIT A-3

TO THE INDENTURE

 

[FORM OF FACE OF GLOBAL NOTE]

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Global Securities Legend]

 

UNLESS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

 

A-31

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

A-32

 

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE GUARANTORS, OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) ITS ACQUISITION AND HOLDING OF SUCH NOTES OR AN INTEREST THEREIN DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) IT WILL NOT SELL OR OTHERWISE TRANSFER SUCH NOTES UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTIES IN (1) ABOVE.

 

A-33

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.777% SENIOR NOTE DUE 2054

 

CUSIP:

    ISIN:

 

No. ___

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay $______      to Cede & Co. or registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on April 3, 2054.

 

Interest Payment Dates: April 3 and October 3 of each year, commencing October 3, 2024. Record Dates: March 19 and September 18 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

A-34

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY
     
  By:  
  Name:  
  Title:  
     
  By:  
  Name:  
  Title:  

 

This is one of the Notes referred to
in the within-mentioned Indenture:

 

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Authenticating Agent for

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

 

By:    
Name:    
Title:    
     
     
Dated:    

 

A-35

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.777% SENIOR NOTE DUE 2054

 

1.              Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2054 Notes will be payable semi-annually in arrears on April 3 and October 3 of each year, commencing October 3, 2024. The Issuer will make each interest payment to the Holders of record at the close of business on the immediately preceding March 19 and September 18 of each year. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of DTC. Interest on the 2054 Notes will accrue at the rate of 5.777% per annum on the aggregate nominal amount of the 2054 Notes outstanding. Interest accruing on all 2054 Notes then outstanding shall be payable in cash. Interest on the 2054 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

If a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest (“Additional Interest”) shall accrue on this Note, in accordance with the terms of the Registration Rights Agreement. All references to any amount of “interest” payable or with respect to this Note in the Indenture or this Note shall be deemed to include any applicable Additional Interest that may be payable on the Note.

 

2.              Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

A-36

 

 

 

(2)            any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)            except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)            any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

A-37

 

 

(7)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

(8)            any Taxes imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable); any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, law, regulation or other official guidance enacted in any other jurisdiction, facilitating implementation thereof;

 

(9)            all United States backup withholding taxes;

 

(4)           any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) as amended from time to time; or

 

(5)            any combination of clauses (1) through (10) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (11) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.             Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in U.S. dollars. Immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

4.              Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank Trust Company Americas will act as Paying Agent and Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.              Indenture. The Issuer issued the Notes under an Indenture, dated as of April 3, 2024 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 5.777% Senior Notes due 2054 (the “2054 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

A-38

 

 

6.              Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.              Optional Redemption. Except as set forth below in this Paragraph 7 or under Paragraphs 8, 10 and 11, none of the 2054 Notes will be redeemable prior to October 3, 2053.

 

At any time prior to October 3, 2053, the Issuer may redeem the 2054 Notes at its option, in whole or in part, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (a) 100% of the principal amount thereof and (b) (i) the sum of the present values of the remaining scheduled payments if principal and interest thereon discounted to the redemption date (assuming the Notes to be redeemed are scheduled to mature on October 3, 2053) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Applicable Basis Points less (ii) interest accrued to the date of redemption, plus, in either case, accrued and unpaid interest thereon and Additional Amounts, 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).

 

On or after October 3, 2053, the Issuer may redeem the 2054 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

If and so long as the 2054 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2054 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2054 Notes that will remain outstanding following such redemption.

 

 

A-39

 

 

8.              Special Tax Redemption. The Issuer may, at its option, redeem the 2054 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2054 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2054 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2054 Notes would be, required to pay Additional Amounts with respect to the 2054 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2054 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2054 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2054 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2054 Notes.

 

9.              Notice of Redemption. Notice of redemption (other than a special mandatory redemption under Paragraph 10) will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of $200,000 may be redeemed only in whole. No Note of $200,000 in aggregate principal amount or less, or other than in an integral multiple of $1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

A-40

 

 

10.            Special Mandatory Redemption. If (i) the Combination is not consummated prior to March 12, 2025, (ii) the Transaction Agreement is terminated at any time prior to March 12, 2025 (other than as a result of consummating the Combination) or (iii) SKG publicly announces at any time prior to March 12, 2025 that it will no longer pursue the consummation of the Combination, then the Issuer will be required to redeem all of the outstanding Notes of each series pursuant to a special mandatory redemption at a redemption price equal to 101% of the aggregate principal amount of the Notes of such series, plus accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date. In that event, the Issuer will cause a notice of special mandatory redemption to be transmitted to each Holder of the Notes at its registered address (or delivered by means of publication via DTC) and to the Trustee not later than five Business Days after the Trigger Date, and will redeem the Notes on the Special Mandatory Redemption Date. The Special Mandatory Redemption Date will be a date selected by the Issuer and set forth in the notice of special mandatory redemption and will be no later than 20 days following the Trigger Date, but no earlier than the fifth Business Day following the day the notice of special mandatory redemption is transmitted to Holders of the Notes of the applicable series. If funds sufficient to pay the special mandatory redemption price of the Notes of a series to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee or the Paying Agent on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the Notes of that series will cease to bear interest.

 

11.            Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2054 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to $200,000 in principal amount and integral multiples of $1,000 in excess thereof) of the 2054 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2054 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2054 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

12.            [Intentionally omitted]

 

13.            Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

14.            [Intentionally omitted]

 

15.            [Intentionally omitted]

 

16.            Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of $200,000 and integral multiples of $1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

A-41

 

 

17.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

18.            Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

19.            Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

20.            Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

21.            Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.            Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

23.            Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

A-42

 

 

25.            Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.            Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.            CUSIPs and ISINs. The Issuer has caused CUSIPs and ISINs to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.            Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

A-43

 

 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL AMOUNT

 

The initial principal amount at maturity of this Note shall be $      . The following decreases/increases in the principal amount at maturity of this Note have been made:

 

            Total Principal    
            Amount at   Notation
    Decrease in   Increase in   Maturity   Made by
Date of   Principal   Principal   Following such   or on
Decrease/   Amount at   Amount at   Decrease/   Behalf of
Increase   Maturity   Maturity   Increase   Trustee
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 

 

A-44

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: $

 

Date:

 

Your Signature:                            

(Sign exactly as your name appears on the other side of this Note)

 

A-45

 

 

EXHIBIT B-1

TO THE INDENTURE

 

[FORM OF FACE OF DEFINITIVE NOTE]

 

THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-1

 

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE GUARANTORS, OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

 

B-2

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) ITS ACQUISITION AND HOLDING OF SUCH NOTES OR AN INTEREST THEREIN DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) IT WILL NOT SELL OR OTHERWISE TRANSFER SUCH NOTES UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTIES IN (1) ABOVE.

 

[Definitive Securities Legend]

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER SHALL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

B-3

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.200% SENIOR NOTE DUE 2030

 

CUSIP:

 

  ISIN:

 

No.____                                                                        $

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay $____________      to_______      or registered assigns upon surrender hereof the principal sum of____________      U.S. dollars ($______      ), on January 15, 2030.

 

Interest Payment Dates: January 15 and July 15 of each year, commencing July 15, 2024.

 

Record Dates: January 1 and July 1 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

B-4

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY
     
  By:  
  Name:  
  Title:  
     
  By:  
  Name:  
  Title:  

 

This is one of the Notes referred to
in the within-mentioned Indenture:

 

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Authenticating Agent for

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

 

By:    
Name:    
Title:    
     
     
Dated:    

 

B-5

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.200% SENIOR NOTE DUE 2030

 

1.             Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2030 Notes will be payable semi-annually in arrears on January 15 and July 15 of each year, commencing July 15, 2024. The Issuer will make each interest payment to the Holders of record at the close of business on the immediately preceding January 1 and July 1 of each year. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of DTC. Interest on the 2030 Notes will accrue at the rate of 5.200% per annum on the aggregate nominal amount of the 2030 Notes outstanding. Interest accruing on all 2030 Notes then outstanding shall be payable in cash. Interest on the 2030 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

If a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest (“Additional Interest”) shall accrue on this Note, in accordance with the terms of the Registration Rights Agreement. All references to any amount of “interest” payable or with respect to this Note in the Indenture or this Note shall be deemed to include any applicable Additional Interest that may be payable on the Note.

 

2.             Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)            any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

B-6

 

 

 

(2)            any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)            except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)            any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)            any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)            any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

B-7

 

 

(7)            a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

(8)            any Taxes imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable); any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, law, regulation or other official guidance enacted in any other jurisdiction, facilitating implementation thereof;

 

(9)            all United States backup withholding taxes;

 

(6)            any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) as amended from time to time; or

 

(7)            any combination of clauses (1) through (10) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (11) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.            Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in U.S. dollars. With respect to payments in U.S. dollars, if (i) a Holder has given wire transfer instructions to the Issuer and the Paying Agent in writing, (ii) the Paying Agent has received such written wire transfer instruction at least 15 days prior to the date of the relevant payment and (iii) for so long as the Notes of the relevant series are listed on Euronext Dublin, such holder has also provided such notice to the Paying Agent, then the Issuer will pay all interest, premium and Additional Amounts, if any, on that Holder’s Notes in accordance with those instructions by wire transfer of same day funds to the Paying Agent who in turn will wire such funds to the Holder hereof or to such other Person as the Holder hereof may in writing to the Paying Agent direct. In all other cases, the Issuer may elect to make payments of interest, premium and Additional Amounts, if any, on a Holder’s Notes by check mailed to the Holders at their addresses set forth in the register of Holders. Payments on Notes will be made through the office or agency of the Paying Agent and Registrar for the Notes unless the Issuer elects to make interest payments by check as previously described. If payments are made through the Paying Agent, immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

B-8

 

 

4.            Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank Trust Company Americas will act as Paying Agent and Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.            Indenture. The Issuer issued the Notes under an Indenture, dated as of April 3, 2024 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 5.200% Senior Notes due 2030 (the “2030 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

6.            Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.            Optional Redemption. Except as set forth below in this Paragraph 7 or under Paragraphs 8, 10 and 11, none of the 2030 Notes will be redeemable prior to December 15, 2029.

 

At any time prior to December 15, 2029, the Issuer may redeem the 2030 Notes at its option, in whole or in part, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (a) 100% of the principal amount thereof and (b) (i) the sum of the present values of the remaining scheduled payments if principal and interest thereon discounted to the redemption date (assuming the Notes to be redeemed are scheduled to mature on December 15, 2029) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Applicable Basis Points less (ii) interest accrued to the date of redemption, plus, in either case, accrued and unpaid interest thereon and Additional Amounts, 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).

 

On or after December 15, 2029, the Issuer may redeem the 2030 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

B-9

 

 

 

If and so long as the 2030 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2030 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2030 Notes that will remain outstanding following such redemption.

 

8.            Special Tax Redemption. The Issuer may, at its option, redeem the 2030 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2030 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2030 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2030 Notes would be, required to pay Additional Amounts with respect to the 2030 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2030 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2030 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2030 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2030 Notes.

 

9.            Notice of Redemption. Notice of redemption (other than a special mandatory redemption under Paragraph 10) will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of $200,000 may be redeemed only in whole. No Note of $200,000 in aggregate principal amount or less, or other than in an integral multiple of $1,000 in excess thereof, shall be redeemed in part.

 

B-10

 

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.            Special Mandatory Redemption. If (i) the Combination is not consummated prior to March 12, 2025, (ii) the Transaction Agreement is terminated at any time prior to March 12, 2025 (other than as a result of consummating the Combination) or (iii) SKG publicly announces at any time prior to March 12, 2025 that it will no longer pursue the consummation of the Combination, then the Issuer will be required to redeem all of the outstanding Notes of each series pursuant to a special mandatory redemption at a redemption price equal to 101% of the aggregate principal amount of the Notes of such series, plus accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date. In that event, the Issuer will cause a notice of special mandatory redemption to be transmitted to each Holder of the Notes at its registered address (or delivered by means of publication via DTC) and to the Trustee not later than five Business Days after the Trigger Date, and will redeem the Notes on the Special Mandatory Redemption Date. The Special Mandatory Redemption Date will be a date selected by the Issuer and set forth in the notice of special mandatory redemption and will be no later than 20 days following the Trigger Date, but no earlier than the fifth Business Day following the day the notice of special mandatory redemption is transmitted to Holders of the Notes of the applicable series. If funds sufficient to pay the special mandatory redemption price of the Notes of a series to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee or the Paying Agent on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the Notes of that series will cease to bear interest.

 

11.            Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2030 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to $200,000 in principal amount and integral multiples of $1,000 in excess thereof) of the 2030 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2030 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2030 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

12.            [Intentionally omitted]

 

13.            Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

B-11

 

 

14.            [Intentionally omitted]

 

15.            [Intentionally omitted]

 

16.            Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of $200,000 and integral multiples of $1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

17.            Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

18.            Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

19.            Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

20.            Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

21.            Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.            Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

B-12

 

 

 

23.            Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

25.            Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.            Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.            CUSIPS and ISINs. The Issuer has caused CUSIPs and ISINs to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.            Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

B-13

 

 

 

 

ASSIGNMENT FORM

 

To assign this Note fill in the form below:

 

I or we assign and transfer this Note to

 

(Print or type assignee’s name, address and zip code)

 

(Insert assignee’s social security or tax I.D. No.)

 

and irrevocably appoint                      agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

 

 

 

Date:________________      Your Signature:

 

 

 

Sign exactly as your name appears on the other side of this Note.

 

B-14

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: $

 

Date:

 

Your Signature:                              

(Sign exactly as your name appears on the other side of this Note)

 

B-15

 

 

 

EXHIBIT B-2

TO THE INDENTURE

 

[FORM OF FACE OF DEFINITIVE NOTE]

 

THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-16

 

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE GUARANTORS, OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-17

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) ITS ACQUISITION AND HOLDING OF SUCH NOTES OR AN INTEREST THEREIN DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) IT WILL NOT SELL OR OTHERWISE TRANSFER SUCH NOTES UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTIES IN (1) ABOVE.

 

[Definitive Securities Legend]

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER SHALL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

B-18

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.438% SENIOR NOTE DUE 2034

 

  CUSIP:  
     
  ISIN:  
     
No.____    $  

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay $____________    to    ____________     or registered assigns upon surrender hereof the principal sum of ____________   U.S. dollars ($________), on April 3, 2034.

 

Interest Payment Dates: April 3 and October 3 of each year, commencing October 3, 2024.

 

Record Dates: March 19 and September 18 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

B-19

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
  By:        
  Name:    
  Title:  
   
  By:  
  Name:  
  Title:  

 

This is one of the Notes referred to in the within-mentioned Indenture:  
 
   
DEUTSCHE BANK TRUST COMPANY AMERICAS,  
as Authenticating Agent for  
   
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee  
   
By:              
Name:      
Title:    
   
Dated:  

 

B-20

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.438% SENIOR NOTE DUE 2034

 

1.  Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2034 Notes will be payable semi-annually in arrears on April 3 and October 3 of each year, commencing October 3, 2024. The Issuer will make each interest payment to the Holders of record at the close of business on the immediately preceding March 19 and September 18 of each year. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of DTC. Interest on the 2034 Notes will accrue at the rate of 5.438% per annum on the aggregate nominal amount of the 2034 Notes outstanding. Interest accruing on all 2034 Notes then outstanding shall be payable in cash. Interest on the 2034 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

If a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest (“Additional Interest”) shall accrue on this Note, in accordance with the terms of the Registration Rights Agreement. All references to any amount of “interest” payable or with respect to this Note in the Indenture or this Note shall be deemed to include any applicable Additional Interest that may be payable on the Note.

 

2.  Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)  any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

B-21

 

 

(2)  any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)  except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)  any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)  any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)  any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

B-22

 

 

(7)  a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

(8)  any Taxes imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable); any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, law, regulation or other official guidance enacted in any other jurisdiction, facilitating implementation thereof;

 

(9)  all United States backup withholding taxes;

 

(8)  any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) as amended from time to time; or

 

(9)  any combination of clauses (1) through (10) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (11) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.   Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in U.S. dollars. With respect to payments in U.S. dollars, if (i) a Holder has given wire transfer instructions to the Issuer and the Paying Agent in writing, (ii) the Paying Agent has received such written wire transfer instruction at least 15 days prior to the date of the relevant payment and (iii) for so long as the Notes of the relevant series are listed on Euronext Dublin, such holder has also provided such notice to the Paying Agent, then the Issuer will pay all interest, premium and Additional Amounts, if any, on that Holder’s Notes in accordance with those instructions by wire transfer of same day funds to the Paying Agent who in turn will wire such funds to the Holder hereof or to such other Person as the Holder hereof may in writing to the Paying Agent direct. In all other cases, the Issuer may elect to make payments of interest, premium and Additional Amounts, if any, on a Holder’s Notes by check mailed to the Holders at their addresses set forth in the register of Holders. Payments on Notes will be made through the office or agency of the Paying Agent and Registrar for the Notes unless the Issuer elects to make interest payments by check as previously described. If payments are made through the Paying Agent, immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

B-23

 

 

4.  Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank Trust Company Americas will act as Paying Agent and Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.  Indenture. The Issuer issued the Notes under an Indenture, dated as of April 3, 2024 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 5.438% Senior Notes due 2034 (the “2034 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

6.  Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.  Optional Redemption. Except as set forth below in this Paragraph 7 or under Paragraphs 8, 10 and 11, none of the 2034 Notes will be redeemable prior to January 3, 2034.

 

At any time prior to January 3, 2034, the Issuer may redeem the 2034 Notes at its option, in whole or in part, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (a) 100% of the principal amount thereof and (b) (i) the sum of the present values of the remaining scheduled payments if principal and interest thereon discounted to the redemption date (assuming the Notes to be redeemed are scheduled to mature on January 3, 2034) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Applicable Basis Points less (ii) interest accrued to the date of redemption, plus, in either case, accrued and unpaid interest thereon and Additional Amounts, 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).

 

B-24

 

 

On or after January 3, 2034, the Issuer may redeem the 2034 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

If and so long as the 2034 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2034 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2034 Notes that will remain outstanding following such redemption.

 

8.  Special Tax Redemption. The Issuer may, at its option, redeem the 2034 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2034 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2034 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2034 Notes would be, required to pay Additional Amounts with respect to the 2034 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2034 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2034 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2034 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2034 Notes.

 

9.  Notice of Redemption. Notice of redemption (other than a special mandatory redemption under Paragraph 10) will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of $200,000 may be redeemed only in whole. No Note of $200,000 in aggregate principal amount or less, or other than in an integral multiple of $1,000 in excess thereof, shall be redeemed in part.

 

B-25

 

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.  Special Mandatory Redemption. If (i) the Combination is not consummated prior to March 12, 2025, (ii) the Transaction Agreement is terminated at any time prior to March 12, 2025 (other than as a result of consummating the Combination) or (iii) SKG publicly announces at any time prior to March 12, 2025 that it will no longer pursue the consummation of the Combination, then the Issuer will be required to redeem all of the outstanding Notes of each series pursuant to a special mandatory redemption at a redemption price equal to 101% of the aggregate principal amount of the Notes of such series, plus accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date. In that event, the Issuer will cause a notice of special mandatory redemption to be transmitted to each Holder of the Notes at its registered address (or delivered by means of publication via DTC) and to the Trustee not later than five Business Days after the Trigger Date, and will redeem the Notes on the Special Mandatory Redemption Date. The Special Mandatory Redemption Date will be a date selected by the Issuer and set forth in the notice of special mandatory redemption and will be no later than 20 days following the Trigger Date, but no earlier than the fifth Business Day following the day the notice of special mandatory redemption is transmitted to Holders of the Notes of the applicable series. If funds sufficient to pay the special mandatory redemption price of the Notes of a series to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee or the Paying Agent on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the Notes of that series will cease to bear interest.

 

11.  Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2034 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to $200,000 in principal amount and integral multiples of $1,000 in excess thereof) of the 2034 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2034 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2034 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

12.  [Intentionally omitted]

 

B-26

 

 

13.  Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

14.  [Intentionally omitted]

 

15.  [Intentionally omitted]

 

16.  Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of $200,000 and integral multiples of $1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

17.  Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

18.  Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

19.  Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

20.  Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

21.  Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.  Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

B-27

 

 

23.  Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.  No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

25.  Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.  Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.  CUSIPs and ISINs. The Issuer has caused CUSIPs and ISINs to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.  Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

B-28

 

 

 

 

ASSIGNMENT FORM

 

To assign this Note fill in the form below:

 

I or we assign and transfer this Note to

 

(Print or type assignee’s name, address and zip code)

 

(Insert assignee’s social security or tax I.D. No.)

 

and irrevocably appoint                                         agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

 

 

Date:________________  Your Signature:

 

 

Sign exactly as your name appears on the other side of this Note.

 

B-29

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: $

 

Date:

 

Your Signature:___________________

(Sign exactly as your name appears on the other side of this Note)

 

B-30

 

 

EXHIBIT B-3

TO THE INDENTURE

 

[FORM OF FACE OF DEFINITIVE NOTE]

 

THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.

 

[Regulation S Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S ONLY (A) TO THE ISSUER, THE PARENT OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-31

 

 

[Rule 144A Securities Legend]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND (2) AGREES ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR A BENEFICIAL INTEREST IN SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, THE GUARANTORS, OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

B-32

 

 

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE “PLAN ASSETS” OF ANY SUCH PLANS, OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA), NON-U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON-U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) ITS ACQUISITION AND HOLDING OF SUCH NOTES OR AN INTEREST THEREIN DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF SIMILAR LAW, AND (2) IT WILL NOT SELL OR OTHERWISE TRANSFER SUCH NOTES UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTIES IN (1) ABOVE.

 

[Definitive Securities Legend]

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER SHALL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

B-33

 

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.777% SENIOR NOTE DUE 2054

 

  CUSIP:  
     
  ISIN:  
     
No.____    $  

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”, which term includes any successor corporation), for value received promises to pay $____________    to    ____________     or registered assigns upon surrender hereof the principal sum of ____________   U.S. dollars ($________), on April 3, 2054.

 

Interest Payment Dates: April 3 and October 3 of each year, commencing October 3, 2024.

 

Record Dates: March 19 and September 18 of each year.

 

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.

 

B-34

 

 

IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Dated:

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY
   
  By:        
  Name:    
  Title:  
   
  By:  
  Name:  
  Title:  

 

This is one of the Notes referred to in the within-mentioned Indenture:  
 
   
DEUTSCHE BANK TRUST COMPANY AMERICAS,  
as Authenticating Agent for  
   
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee  
   
By:              
Name:      
Title:    
   
Dated:  

 

B-35

 

 

[FORM OF REVERSE]

 

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

 

5.777% SENIOR NOTE DUE 2054

 

1.  Interest. SMURFIT KAPPA TREASURY UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. Interest on the 2054 Notes will be payable semi-annually in arrears on April 3 and October 3 of each year, commencing October 3, 2024. The Issuer will make each interest payment to the Holders of record at the close of business on the immediately preceding March 19 and September 18 of each year. Rights of holders of beneficial interests to receive such payments will be subject to applicable procedures of DTC. Interest on the 2054 Notes will accrue at the rate of 5.777% per annum on the aggregate nominal amount of the 2054 Notes outstanding. Interest accruing on all 2054 Notes then outstanding shall be payable in cash. Interest on the 2054 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth herein.

 

If a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest (“Additional Interest”) shall accrue on this Note, in accordance with the terms of the Registration Rights Agreement. All references to any amount of “interest” payable or with respect to this Note in the Indenture or this Note shall be deemed to include any applicable Additional Interest that may be payable on the Note.

 

2.  Additional Amounts. All payments made by the Payor on the Notes or any Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction in which the Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or the Guarantees, including, without limitation, payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), equal the amounts which would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable with respect to:

 

(1)  any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the Notes by reason of the Holder (or a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Relevant Taxing Jurisdiction) other than a connection arising from the acquisition, ownership or holding of such Note or enforcement of rights thereunder or the receipt of payments in respect of the Notes or with respect to any Guarantee;

 

B-36

 

 

(2)  any Taxes that would not have been imposed if the Holder or Beneficial Owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or Beneficial Owner at that time has been notified in writing by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);

 

(3)  except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);

 

(4)  any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);

 

(5)  any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to any Guarantee;

 

(6)  any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax, assessment or other governmental charge;

 

B-37

 

 

(7)  a Tax imposed in connection with a Note presented for payment by or on behalf of a Holder or Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accept payment from, another paying agent in a member state of the European Union;

 

(8)  any Taxes imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, in each case, as of the Issue Date (and any amended or successor version that is substantively comparable); any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, law, regulation or other official guidance enacted in any other jurisdiction, facilitating implementation thereof;

 

(9)  all United States backup withholding taxes;

 

(10)  any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) as amended from time to time; or

 

(11)  any combination of clauses (1) through (10) above.

 

Such Additional Amounts will also not be payable where, had the Beneficial Owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of clauses (1) to (11) inclusive above.

 

Upon request, the Issuer will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the Holders upon request.

 

3.   Method of Payment. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the Record Date with respect to such Notes immediately preceding the interest payment date for such interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay all amounts owing hereunder in U.S. dollars. With respect to payments in U.S. dollars, if (i) a Holder has given wire transfer instructions to the Issuer and the Paying Agent in writing, (ii) the Paying Agent has received such written wire transfer instruction at least 15 days prior to the date of the relevant payment and (iii) for so long as the Notes of the relevant series are listed on Euronext Dublin, such holder has also provided such notice to the Paying Agent, then the Issuer will pay all interest, premium and Additional Amounts, if any, on that Holder’s Notes in accordance with those instructions by wire transfer of same day funds to the Paying Agent who in turn will wire such funds to the Holder hereof or to such other Person as the Holder hereof may in writing to the Paying Agent direct. In all other cases, the Issuer may elect to make payments of interest, premium and Additional Amounts, if any, on a Holder’s Notes by check mailed to the Holders at their addresses set forth in the register of Holders. Payments on Notes will be made through the office or agency of the Paying Agent and Registrar for the Notes unless the Issuer elects to make interest payments by check as previously described. If payments are made through the Paying Agent, immediately available funds for the payment of the principal of (and premium, if any), interest and Additional Amounts, if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such funds to the Holders on such respective dates.

 

B-38

 

 

4.  Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank Trust Company Americas will act as Paying Agent and Registrar. In the event that a Paying Agent or Transfer Agent is replaced, the Issuer will provide notice thereof as set forth in the Indenture. The Issuer may change any Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may, subject to certain exceptions, act in any such capacity.

 

5.  Indenture. The Issuer issued the Notes under an Indenture, dated as of April 3, 2024 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 5.777% Senior Notes due 2054 (the “2054 Notes”). The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them. The Notes are senior obligations of the Issuer. Additional Notes (as defined in the Indenture) may be issued from time to time under the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

6.  Ranking. The Notes will be senior unsecured obligations of the Issuer and will: (a) rank equally in right of payment with all of the Issuer’s existing and future indebtedness that is not subordinated in right of payment to the Notes; (b) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is subordinated in right of payment to the Notes; (c) be effectively junior to all of the Issuer’s existing and future secured indebtedness to the extent of the value of the collateral securing such other indebtedness; and (d) be structurally subordinated in right of payment to any obligations of the Issuer’s Subsidiaries other than the Issuer’s Subsidiaries that are Guarantors.

 

7.  Optional Redemption. Except as set forth below in this Paragraph 7 or under Paragraphs 8, 10 and 11, none of the 2054 Notes will be redeemable prior to October 3, 2053.

 

At any time prior to October 3, 2053, the Issuer may redeem the 2054 Notes at its option, in whole or in part, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (a) 100% of the principal amount thereof and (b) (i) the sum of the present values of the remaining scheduled payments if principal and interest thereon discounted to the redemption date (assuming the Notes to be redeemed are scheduled to mature on October 3, 2053) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Applicable Basis Points less (ii) interest accrued to the date of redemption, plus, in either case, accrued and unpaid interest thereon and Additional Amounts, 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).

 

B-39

 

 

On or after October 3, 2053, the Issuer may redeem the 2054 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, 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).

 

If and so long as the 2054 Notes are admitted to the Global Exchange Market of Euronext Dublin, and the rules of the Global Exchange Market of Euronext Dublin so require, in the event that the Issuer effects an optional redemption of the 2054 Notes, the Issuer will inform the Companies Announcement Office of Euronext Dublin of such optional redemption and confirm the aggregate principal amount of the 2054 Notes that will remain outstanding following such redemption.

 

8.  Special Tax Redemption. The Issuer may, at its option, redeem the 2054 Notes in whole, but not in part, at any time upon giving not less than 10 nor more than 60 days’ notice to the Holders of the 2054 Notes (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record of 2054 Notes on the relevant record date to receive interest due on the relevant interest payment date), all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (a “Redemption Price”), if a Payor determines that, as a result of (1) any change in, or amendment to, the law or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction affecting taxation or (2) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction) (each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the Payor or any Guarantor is, or on the next interest payment date in respect of the 2054 Notes would be, required to pay Additional Amounts with respect to the 2054 Notes, and the Payor or the relevant Guarantor (as appropriate) cannot avoid such obligation by taking reasonable measures available to it. In the case of the Issuer or any Guarantor as of the Issue Date, the Change in Tax Law must become effective on or after the date of the Offering Memorandum. In the case of a Successor Issuer or any Person who becomes a Guarantor after the Issue Date or any successor of any Guarantor, the Change in Tax Law must become effective after the date that such entity first makes payment on the 2054 Notes or after the date on which such Person became a Guarantor or a successor of any Guarantor, as applicable. Notice of redemption for taxation reasons will be published in accordance with the procedures set forth in the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Payor or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of such 2054 Notes were then due. Prior to the publication or mailing of any notice of redemption of 2054 Notes pursuant to the foregoing, the Payor will deliver to the Trustee an opinion of an independent tax counsel reasonably satisfactory to the Trustee to the effect that the circumstances referred to above exist. The Trustee will accept such opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders of the 2054 Notes.

 

B-40

 

 

9.  Notice of Redemption. Notice of redemption (other than a special mandatory redemption under Paragraph 10) will be given at least 10 days but not more than 60 days before the relevant Redemption Date or Tax Redemption Date, as the case may be. All such notices in respect of Global Notes will be delivered to the Clearing Agency, which will give notice of such notice to the applicable holders of the beneficial interests in the Notes. Notes in denominations of $200,000 may be redeemed only in whole. No Note of $200,000 in aggregate principal amount or less, or other than in an integral multiple of $1,000 in excess thereof, shall be redeemed in part.

 

Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date, then, unless the Issuer defaults in the payment of such Redemption Price, the Notes called for redemption will cease to bear interest, or Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price. Any such redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

10.  Special Mandatory Redemption. If (i) the Combination is not consummated prior to March 12, 2025, (ii) the Transaction Agreement is terminated at any time prior to March 12, 2025 (other than as a result of consummating the Combination) or (iii) SKG publicly announces at any time prior to March 12, 2025 that it will no longer pursue the consummation of the Combination, then the Issuer will be required to redeem all of the outstanding Notes of each series pursuant to a special mandatory redemption at a redemption price equal to 101% of the aggregate principal amount of the Notes of such series, plus accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date. In that event, the Issuer will cause a notice of special mandatory redemption to be transmitted to each Holder of the Notes at its registered address (or delivered by means of publication via DTC) and to the Trustee not later than five Business Days after the Trigger Date, and will redeem the Notes on the Special Mandatory Redemption Date. The Special Mandatory Redemption Date will be a date selected by the Issuer and set forth in the notice of special mandatory redemption and will be no later than 20 days following the Trigger Date, but no earlier than the fifth Business Day following the day the notice of special mandatory redemption is transmitted to Holders of the Notes of the applicable series. If funds sufficient to pay the special mandatory redemption price of the Notes of a series to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee or the Paying Agent on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the Notes of that series will cease to bear interest.

 

11.  Change of Control Offer. Upon the occurrence of a Change of Control Repurchase Event with respect to the 2054 Notes, the Issuer will be required to make an offer to purchase all or any part (equal to $200,000 in principal amount and integral multiples of $1,000 in excess thereof) of the 2054 Notes on the Change of Control Payment Date at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record of Definitive Notes on the relevant Record Date to receive interest and Additional Amounts, if any, on the relevant interest payment date). Holders of 2054 Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Issuer prior to any related Change of Control Payment Date and may elect to have such 2054 Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.

 

12.  [Intentionally omitted]

 

13.  Guarantees. The payment by the Issuer of the principal of, premium, if any, interest or Additional Amounts, if any, on the Notes and all other obligations of the Issuer under the Indenture is, subject to Section 10.2 of the Indenture and limitations under applicable law, fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis, by each of the Guarantors to the extent set forth in the Indenture.

 

B-41

 

 

14.  [Intentionally omitted]

 

15.  [Intentionally omitted]

 

16.  Denominations; Form; Transfer and Exchange. The Global Notes are in registered form, without coupons, in denominations of $200,000 and integral multiples of $1,000. The Trustee, the Registrar, the Paying Agent and the Transfer Agent may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay all taxes and fees required by law or permitted by the Indenture.

 

17.  Persons Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.

 

18.  Unclaimed Funds. If funds for the payment of principal, interest, premium, or Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the funds to the Issuer at its written request. After that, all liability of the Trustee and such Paying Agents with respect to such funds shall cease.

 

19.  Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its obligations under the Indenture and the Notes of any series except for certain provisions thereof, and may be discharged from its obligations to comply with certain covenants contained in the Indenture, in each case upon satisfaction of certain conditions specified in the Indenture.

 

20.  Amendment; Supplement; Waiver. Subject to certain exceptions specified in the Indenture, the Indenture or any series of Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes of such series then outstanding, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes of such series may be waived with the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding.

 

21.  Successors. When a successor assumes all the obligations of its predecessor under the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.

 

22.  Defaults and Remedies. Subject to certain restrictions, if an Event of Default (other than an Event of Default specified in clause (5) of Section 6.1 of the Indenture) occurs and is continuing with respect to any series of Notes, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of such series may declare all the Notes of such series to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes of each series then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest, and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

B-42

 

 

23.  Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

24.  No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

25.  Authentication. This Note shall not be valid until the Trustee or Authenticating Agent signs the certificate of authentication on this Note.

 

26.  Abbreviations and Defined Terms. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined herein, terms defined in the Indenture are used herein as defined therein.

 

27.  CUSIPs and ISINs. The Issuer has caused CUSIPs and ISINs to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

28.  Governing Law. The Indenture, the Notes and the Guarantees, and the rights and duties of the parties hereunder and thereunder, shall be governed by, and construed in accordance with, the laws of the State of New York.

 

B-43

 

 

 

 

ASSIGNMENT FORM

 

To assign this Note fill in the form below:

 

I or we assign and transfer this Note to

 

(Print or type assignee’s name, address and zip code)

 

(Insert assignee’s social security or tax I.D. No.)

 

and irrevocably appoint                                      agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

 

 

Date:________________  Your Signature:

 

 

Sign exactly as your name appears on the other side of this Note.

 

B-44

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, check the box: ¨

 

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.19 of the Indenture, state the amount: $

 

Date:

 

Your Signature:___________________

(Sign exactly as your name appears on the other side of this Note)

 

B-45

 

 

EXHIBIT C-1

TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM

2030 RULE 144A GLOBAL NOTE TO 2030 REGULATION S GLOBAL NOTE

(TRANSFERS PURSUANT TO SECTION 2.7(B) OF THE INDENTURE)

 

Smurfit Kappa Treasury Unlimited Company

c/o Deutsche Bank Trust Company Americas, as Trustee, Transfer Agent and Registrar

Attention: Corporates Team, Smurfit Kappa Treasury Unlimited Company, AA6312

1 Columbus Circle, 17th

Mail Stop: NYC01-1710

New York, NY 10019

USA

 

RE:          5.200% Senior Notes due 2030 (the “2030 Notes”) of Smurfit Kappa Treasury Unlimited Company (the “Issuer”)

 

Reference is hereby made to the Indenture, dated as of April 3, 2024 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.

 

This letter relates to $______________   (being any integral multiple of $1,000 in excess of $200,000) principal amount of 2030 Notes which are evidenced by 2030 Rule 144A Global Notes (CUSIP 83272G AA9; ISIN US83272GAA94) and held by you on behalf of DTC who in turn is holding an interest therein on behalf of the undersigned (the “Transferor”). The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the 2030 Rule 144A Global Note be transferred or exchanged for an interest in the 2030 Regulation S Global Note (CUSIP G8267G AD0; ISIN USG8267GAD00) in the form of an equal aggregate principal amount of 2030 Notes. If this is a partial transfer, a minimum amount of $200,000 and any integral multiple of $1,000 in excess thereof of the 2030 Rule 144A Global Note will remain outstanding.

 

In connection with such request and in respect of such 2030 Notes, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the 2030 Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S under the Securities Act, and accordingly the Transferor further certifies that:

 

(A)          (1) the offer of the 2030 Notes was not made to a person in the United States;

 

(2) either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on our behalf knows that the transaction was prearranged with a buyer in the United States,

 

C-1

 

 

(3)  no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;

 

(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

(5) if the transfer is made prior to the expiration of 40 days after the later of the Issue Date and the last date on which the Issuer or any of its affiliates was the owner of such 2030 Notes (and the Guarantees thereof) (or any predecessor thereto), the transfer was not made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser of the 2030 Notes).

 

OR

 

(B)           such transfer is being made in accordance with Rule 144 under the Securities Act.

 

C-2

 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer and the Initial Purchasers.

 

Dated:

 

  [Name of Transferor]
   
  By:      
  Name:    
  Title:  
  Telephone No.:

 

Please print name and address (including zip code number)    
     
     

 

C-3

 

 

EXHIBIT C-2

TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM

2034 RULE 144A GLOBAL NOTE TO 2034 REGULATION S GLOBAL NOTE

(TRANSFERS PURSUANT TO SECTION 2.7(B) OF THE INDENTURE)

 

Smurfit Kappa Treasury Unlimited Company

c/o Deutsche Bank Trust Company Americas, as Trustee, Transfer Agent and Registrar

Attention: Corporates Team, Smurfit Kappa Treasury Unlimited Company, AA6312

1 Columbus Circle, 17th

Mail Stop: NYC01-1710

New York, NY 10019

USA

 

RE:          5.438% Senior Notes due 2034 (the “2034 Notes”) of Smurfit Kappa Treasury Unlimited Company (the “Issuer”)

 

Reference is hereby made to the Indenture, dated as of April 3, 2024 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.

 

This letter relates to $_____________  (being any integral multiple of $1,000 in excess of $200,000) principal amount of 2034 Notes which are evidenced by 2034 Rule 144A Global Notes (CUSIP 83272G AC5; ISIN US83272GAC50) and held by you on behalf of DTC who in turn is holding an interest therein on behalf of the undersigned (the “Transferor”). The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the 2034 Rule 144A Global Note be transferred or exchanged for an interest in the 2034 Regulation S Global Note (CUSIP G8267G AF5; ISIN USG8267GAF57) in the form of an equal aggregate principal amount of 2030 Notes. If this is a partial transfer, a minimum amount of $200,000 and any integral multiple of $1,000 in excess thereof of the 2034 Rule 144A Global Note will remain outstanding.

 

In connection with such request and in respect of such 2034 Notes, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the 2034 Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S under the Securities Act, and accordingly the Transferor further certifies that:

 

(A)          (1) the offer of the 2034 Notes was not made to a person in the United States;

 

(2) either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on our behalf knows that the transaction was prearranged with a buyer in the United States,

 

C-4

 

 

(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;

 

(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

(5) if the transfer is made prior to the expiration of 40 days after the later of the Issue Date and the last date on which the Issuer or any of its affiliates was the owner of such 2034 Notes (and the Guarantees thereof) (or any predecessor thereto), the transfer was not made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser of the 2034 Notes).

 

OR

 

(B)           such transfer is being made in accordance with Rule 144 under the Securities Act.

 

C-5

 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer and the Initial Purchasers.

 

Dated:

 

  [Name of Transferor]
   
  By:      
  Name:    
  Title:  
  Telephone No.:

 

Please print name and address (including zip code number)    
     
     

 

C-6

 

 

EXHIBIT C-3

TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM

2054 RULE 144A GLOBAL NOTE TO 2054 REGULATION S GLOBAL NOTE

(TRANSFERS PURSUANT TO SECTION 2.7(B) OF THE INDENTURE)

 

Smurfit Kappa Treasury Unlimited Company

c/o Deutsche Bank Trust Company Americas, as Trustee, Transfer Agent and Registrar

Attention: Corporates Team, Smurfit Kappa Treasury Unlimited Company, AA6312

1 Columbus Circle, 17th

Mail Stop: NYC01-1710

New York, NY 10019

USA

 

RE:          5.777% Senior Notes due 2054 (the “2054 Notes”) of Smurfit Kappa Treasury Unlimited Company (the “Issuer”)

 

Reference is hereby made to the Indenture, dated as of April 3, 2024 (the “Indenture”), among the Issuer, the Parent Guarantors named therein, the Subsidiary Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.

 

This letter relates to $_____________  (being any integral multiple of $1,000 in excess of $200,000) principal amount of 2054 Notes which are evidenced by 2054 Rule 144A Global Notes (CUSIP 83272G AB7; ISIN US83272GAB77) and held by you on behalf of DTC who in turn is holding an interest therein on behalf of the undersigned (the “Transferor”). The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the 2054 Rule 144A Global Note be transferred or exchanged for an interest in the 2054 Regulation S Global Note (CUSIP G8267G AE8; ISIN USG8267GAE82) in the form of an equal aggregate principal amount of 2030 Notes. If this is a partial transfer, a minimum amount of $200,000 and any integral multiple of $1,000 in excess thereof of the 2054 Rule 144A Global Note will remain outstanding.

 

In connection with such request and in respect of such 2054 Notes, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the 2054 Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S under the Securities Act, and accordingly the Transferor further certifies that:

 

(A)          (1) the offer of the 2054 Notes was not made to a person in the United States;

 

(2) either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on our behalf knows that the transaction was prearranged with a buyer in the United States,

 

C-7

 

 

(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;

 

(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

(5) if the transfer is made prior to the expiration of 40 days after the later of the Issue Date and the last date on which the Issuer or any of its affiliates was the owner of such 2054 Notes (and the Guarantees thereof) (or any predecessor thereto), the transfer was not made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser of the 2054 Notes).

 

OR

 

(B)           such transfer is being made in accordance with Rule 144 under the Securities Act.

 

C-8

 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer and the Initial Purchasers.

 

Dated:

 

  [Name of Transferor]
   
  By:      
  Name:    
  Title:  
  Telephone No.:

 

Please print name and address (including zip code number)    
     
     

 

C-9

 

 

EXHIBIT D

TO THE INDENTURE

 

FORM OF SUPPLEMENTAL INDENTURE

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of [date], among (i) [guarantor] (the “New Guarantor”), a [type of company] organized under the laws of [jurisdiction of organization] with its registered office at [registered office] and a Subsidiary, (ii) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland and having its registered office at Beech Hill, Clonskeagh, Dublin 4, Ireland (the “Issuer”), and (iii) Deutsche Bank Trust Company Americas, as Trustee.

 

WITNESSETH:

 

WHEREAS the Issuer has heretofore executed an Indenture dated as of April 3, 2024 (the “Indenture”), providing for the issuance of the Notes by the Issuer;

 

WHEREAS [Section 4.8 / Section 4.9] [select as applicable] of the Indenture provides that under certain circumstances the Issuer is required to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture providing for a Guarantee of payment of the Notes by the New Guarantor on the terms and conditions set forth herein; and

 

WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.             Agreement to Guarantee. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.             Agreement to be Bound. The New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

3.             Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

D-1

 

 

4.             Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.             Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.             Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

7.             Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.             Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

D-2

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

  [NEW GUARANTOR]
   
  By        
  Name:  
  Title:  

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
UNLIMITED COMPANY    
by its duly authorized attorney    
     
[                      ]    
     
in the presence of [                      ]    
     
    Signature
     
Witness (Signature)    
     
     
Print Address    
     
     
Witness Occupation    

 

D-3

 

 

  DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
   
  By:  
    Name:  
    Title:  
   
  By:  
    Name:    
    Title:  

 

D-4

 

 

Exhibit 4.16

 

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of July 5, 2024, among (i) Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland (the “Issuer”); (ii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors”); and (iii) Deutsche Bank Trust Company Americas, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS the Issuer, the guarantors party thereto, Deutsche Bank Trust Company Americas, as Trustee, Paying Agent, Transfer Agent and Registrar, have heretofore executed an Indenture, dated as of April 3, 2024 (as amended or supplemented, the “Indenture”), providing for the issuance of 5.200% Senior Notes due 2030, 5.438% Senior Notes due 2034 and 5.777% Senior Notes due 2054 (collectively, the “Notes”) by the Issuer;

 

WHERAS Smurfit Kappa Group plc, an Irish public limited company (“SKG”), the indirect parent of the Issuer, has entered into a transaction agreement, dated as of September 12, 2023, with WestRock Company, a Delaware corporation (“WestRock”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Smurfit WestRock (the “Transaction Agreement”);

 

WHEREAS, pursuant to the terms of the Transaction Agreement, the parties thereto agreed to consummate a combination (the “Combination”), following which Smurfit WestRock will be the parent of each of SKG and WestRock;

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all of the other applicable provisions of the Indenture and the Notes (the “New Guarantees”); and

 

WHEREAS pursuant to Section 9.1 of the Indenture, the Issuer, the New Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of any Holder of a Note;

 

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

 

1.            Agreement to Guarantee. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Issuer’s obligations under the Notes on the terms and subject to the conditions set forth in Article X of the Indenture and all the other applicable provisions of the Indenture and the Notes.

 

2.            Agreement to be Bound. Each New Guarantor hereby shall be a party to the Indenture as a Guarantor and as such shall have all of the rights of, be subject to all of the obligations and agreements of and be bound by all of the provisions applicable to a Guarantor of the Notes under the Indenture and the Notes.

 

1

 

 

3.            Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

4.            Governing Law. This Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York.

 

5.            Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart signature page by facsimile, e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

7.            Incorporation by Reference. Section 11.8 of the Indenture is incorporated by reference into this Supplemental Indenture as if more fully set out herein.

 

8.            Effect of Headings; Certain Definitions. The Section headings herein are for convenience only and shall not affect the construction thereof. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Indenture.

 

[Signature pages follow]

 

2

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

Issuer

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2024 Indenture]

 

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed

for and on behalf of

SMURFIT WESTROCK PLC

by its duly authorized attorney

 

in the presence of

and delivered as a deed

   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2024 Indenture]

 

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION

 

By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2024 Indenture]

 

 

 

 

WESTROCK COMPANY

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2024 Indenture]

 

 

 

 

WRKCO INC.

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2024 Indenture]

 

 

 

 

WESTROCK MWV, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2024 Indenture]

 

 

 

 

WESTROCK RKT, LLC

 

By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2024 Indenture]

 

 

 

 

  Deutsche BANK TRUST COMPANY AMERICAS, as Trustee
   
  By: /s/ Irina Golovashchuk
    Name: Irina Golovashchuk
    Title: Vice President
     
  By: /s/ Sébastian Hidalgo
    Name: Sébastian Hidalgo
    Title: Assistant Vice President

 

[Supplemental Indenture to Smurfit Kappa Treasury ULC 2024 Indenture]

 

 

 

 

Exhibit 4.23

 

WRKCO INC.

 

as Issuer

 

and

 

THE GUARANTORS PARTY HERETO

 

 

 

SIXTH SUPPLEMENTAL INDENTURE

 

DATED AS OF JULY 5, 2024
to

 

INDENTURE

 

DATED AS OF AUGUST 24, 2017

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

as Trustee

 

3.750% Senior Notes due 2025

3.375% Senior Notes due 2027

4.000% Senior Notes due 2028

 

 

 

 

SIXTH SUPPLEMENTAL INDENTURE, dated as of July 5, 2024 (this “Supplemental Indenture”), by and among (i) WRKCo Inc., a Delaware corporation (the “Issuer”); (ii) the entities listed in the signature pages hereto as “Existing Guarantors” (the “Existing Guarantors”); (iii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors” and, together with the Existing Guarantors, the “Guarantors”); and (iv) The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as trustee (the “Trustee”).

 

WHEREAS, the Issuer, the guarantors party thereto and the Trustee have previously executed and delivered an indenture, dated as of August 24, 2017 (the “Base Indenture” and, as amended and supplemented by the First Supplemental Indenture, dated as of August 24, 2017, the Second Supplemental Indenture, dated as of March 6, 2018, the Third Supplemental Indenture, dated as of November 2, 2018, the Fourth Supplemental Indenture, dated as of September 22, 2023 and the Fifth Supplemental Indenture, dated as of September 26, 2023, the “Indenture”), in respect of the Issuer’s 3.750% Senior Notes due 2025, 3.375% Senior Notes due 2027 and 4.000% Senior Notes due 2028 (the “Notes”);

 

WHEREAS, pursuant to a transaction agreement, dated as of September 12, 2023, entered into by WestRock Company, a Delaware corporation (“WestRock”), Smurfit Kappa Group plc, an Irish public limited company (“SKG”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of Smurfit WestRock (the “Transaction Agreement”), SKG and WestRock will each become a wholly owned subsidiary of Smurfit WestRock (the “Combination”);

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture (the “New Guarantees”);

 

WHEREAS, pursuant to Section 9.1(vi) of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture without the consent of Holders of the Notes; and

 

WHEREAS, all the conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Issuer and the Guarantors (together the “Obligors”) and the execution and delivery hereof have been in all respects duly authorized by the Obligors.

 

NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as follows:

 

1

 

 

ARTICLE One
REAFFIRMATION, ACCESSION AND AMENDMENT

 

SECTION 1.01.          Reaffirmation. The Issuer hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.

 

SECTION 1.02.          Note Guarantee.

 

(a)            Each New Guarantor hereby agrees to jointly and severally, fully, unconditionally and irrevocably guarantee the Notes and obligations of the Issuer under the Notes and the Indenture, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee on behalf of such Holder, that: (i) the principal of and premium, if any and interest on the Notes shall be paid in full when due, whether at Stated Maturity, by acceleration, call for redemption or otherwise (including, without limitation, the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Issuer to the Holders or the Trustee under the Notes and the Indenture 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 New Guarantees shall be a guarantee of payment and not of collection.

 

(b)            Each New Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of any Obligor.

 

(c)            Each New Guarantor hereby agrees to waive the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer or any other Person, protest, notice and all demands whatsoever and covenants that the New Guarantee of such New Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note or as provided for in this Supplemental Indenture. Each New Guarantor hereby agrees that, in the event of a default in payment of principal or premium, if any, or interest on such Note, whether at its Stated Maturity, by acceleration, 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 the Indenture, directly against such New Guarantor to enforce its New Guarantee without first proceeding against the Issuer or any other Guarantor. Each New Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such New 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 or any of the Holders.

 

(d)            If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, each New Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of the Indenture.

 

2

 

 

(e)            Each New Guarantor further agrees that, as between itself, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI of the Indenture for the purposes of its New Guarantee, 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 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by such New Guarantor for the purpose of its New Guarantee.

 

SECTION 1.03.          Severability. In case any provision of any New 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 1.04.          Limitation of Guarantors’ Liability. Each New Guarantor and by its acceptance of Notes, each Holder, confirms that it is the intention of all such parties that each New Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, the Holders, the Existing Guarantors and each New Guarantor hereby irrevocably agree that the obligations of each New Guarantor under its New Guarantee shall be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of such New Guarantor and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor or such New Guarantor in respect of the obligations of such other Guarantor or the New Guarantor under its guarantee, result in the obligations of any New Guarantor under its New Guarantee constituting a fraudulent transfer or conveyance. Notwithstanding any other provision of the Indenture or this Supplemental Indenture to the contrary, no obligation of the Issuer shall be (or shall be deemed to be) guaranteed by, or otherwise supported directly or indirectly by the assets of, any New Guarantor to the extent its New Guarantee could, as determined by the Issuer (acting reasonably and in good faith), result in material adverse U.S. tax consequences for the Issuer or any of its direct or indirect owners or subsidiaries.

 

SECTION 1.05.          Benefits Acknowledged. Each New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its New Guarantee and waivers pursuant to its New Guarantee are knowingly made in contemplation of such benefits.

 

3

 

 

SECTION 1.06.          Termination of Guarantee. The New Guarantee of any New Guarantor shall be automatically released and shall terminate upon (i) such New Guarantor ceasing to be an obligor (either as issuer or guarantor) in respect of any Capital Markets Debt if after giving effect thereto (and any other substantially concurrent transaction or transactions), such New Guarantor is no longer an obligor (either as issuer or guarantor) in respect of any Capital Markets Debt (other than, before giving effect to the release of its New Guarantee of the Notes, the Notes), (ii) the merger of such New Guarantor with or into another Obligor, (iii) the consolidation of such New Guarantor with another Obligor or (iv) the transfer of all or substantially all of the assets of such New Guarantor to another Obligor. At the written request of the Issuer, and subject to Section 11.4 of the Indenture, the Trustee will execute and deliver any documents or instruments reasonably required to evidence any such release.

 

SECTION 1.07.          Amendment to Section 11.2 of the Indenture. Section 11.2 (Notices) of the Base Indenture is hereby amended by replacing the address under Section 11.2(a) following “If to the Issuer or any Guarantor:” with:

 

Address: Smurfit WestRock

Beech Hill, Clonskeagh, Dublin 4, Ireland

Attention: Emer Murnane

Email: Emer.Murnane@smurfitkappa.com

Tel: +353 1 2600 900

 

ARTICLE Two
MISCELLANEOUS PROVISIONS

 

SECTION 2.01.          Terms Defined. For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.

 

SECTION 2.02.          Indenture. Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. For the avoidance of doubt, the provisions of Article X of the Indenture shall not apply to the New Guarantees.

 

SECTION 2.03.          Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.

 

SECTION 2.04.          Successors. All agreements of the Issuer and each Guarantor in this Supplemental Indenture and the Notes shall bind their respective successors to the extent set forth in the Indenture.

 

SECTION 2.05.          Multiple Counterparts. This Supplemental Indenture may be signed in any number of counterparts each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Supplemental Indenture. Delivery of an executed counterpart signature page by e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

SECTION 2.06.          Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.

 

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SECTION 2.07.          Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Issuer and the Guarantors, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Issuer and the Guarantors by corporate action or otherwise, (iii) the due execution hereof by the Issuer and the Guarantors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.

 

[Signature pages follow]

 

5

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above.

 

Very truly yours,

 

Issuer 
   
WRKCO INC. 
   
By/s/ M. Benjamin Haislip 
Name:M. Benjamin Haislip 
Title:Senior Vice President and Treasurer 

 

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

Existing Guarantors 
   
WESTROCK COMPANY 
   
By/s/ M. Benjamin Haislip 
Name:M. Benjamin Haislip 
Title:Senior Vice President and Treasurer 

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

WESTROCK MWV, LLC 
   
By/s/ M. Benjamin Haislip 
Name:M. Benjamin Haislip 
Title:Senior Vice President and Treasurer 

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

WESTROCK RKT, LLC 
   
By/s/ M. Benjamin Haislip 
Name:M. Benjamin Haislip 
Title:Senior Vice President and Treasurer 

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT WESTROCK PLC    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION 
   
By/s/ Ken Bowles 
Name:Ken Bowles 
Title:Authorised Signatory 

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA GROUP PLC    
by its duly authorized attorney    
     
in the presence of and delivered as a deed    
    /s/ Ken Bowles
    Signature
    Name: Ken Bowles
    Title: CFO / Attorney
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square   /s/ Gillian Carson-Callan
Print Address   Signature
    Name: Gillian Carson-Callan
    Title: Company Secretary / Attorney
Solicitor    
Witness Occupation    

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA    
ACQUISITIONS UNLIMITED    
COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
UNLIMITED COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
FUNDING DESIGNATED    
ACTIVITY COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

SMURFIT INTERNATIONAL B.V. 
   
By/s/ Ken Bowles 
Name:Ken Bowles 
Title:Authorised Signatory 

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee 
   
By/s/ Michael C. Jenkins 
Name:Michael C. Jenkins 
Title:Vice President 

 

[WRKCO Inc. 2017 Supplemental Indenture]

 

 

 

 

Exhibit 4.29

 

WRKCO INC.

 

as Issuer

 

and

 

THE GUARANTORS PARTY HERETO

 

 

FIFTH SUPPLEMENTAL INDENTURE

 

DATED AS OF JULY 5, 2024

 

to

 

INDENTURE

 

DATED AS OF DECEMBER 3, 2018

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

as Trustee

 

4.650% Senior Notes due 2026

3.900% Senior Notes due 2028

4.900% Senior Notes due 2029

4.200% Senior Notes due 2032

3.000% Senior Notes due 2033

 

 

 

 

FIFTH SUPPLEMENTAL INDENTURE, dated as of July 5, 2024 (this “Supplemental Indenture”), by and among (i) WRKCo Inc., a Delaware corporation (the “Issuer”); (ii) the entities listed in the signature pages hereto as “Existing Guarantors” (the “Existing Guarantors”); (iii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors” and, together with the Existing Guarantors, the “Guarantors”); and (iv) The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS, the Issuer, the guarantors party thereto and the Trustee have previously executed and delivered an indenture, dated as of December 3, 2018 (the “Base Indenture” and, as amended and supplemented by the First Supplemental Indenture, dated as of December 3, 2018, the Second Supplemental Indenture, dated as of May 20, 2019, the Third Supplemental Indenture, dated as of June 3, 2020, and the Fourth Supplemental Indenture, dated as of September 26, 2023, the “Indenture”), in respect of the Issuer’s 4.650% Senior Notes due 2026, 3.900% Senior Notes due 2028, 4.900% Senior Notes due 2029, 4.200% Senior Notes due 2032 and 3.000% Senior Notes due 2033 (collectively, the “Notes”);

 

WHEREAS, pursuant to a transaction agreement, dated as of September 12, 2023, entered into by WestRock Company, a Delaware corporation (“WestRock”), Smurfit Kappa Group plc, an Irish public limited company (“SKG”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of Smurfit WestRock (the “Transaction Agreement”), SKG and WestRock will each become a wholly owned subsidiary of Smurfit WestRock (the “Combination”);

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture (the “New Guarantees”);

 

WHEREAS, pursuant to Section 9.1(vi) of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture without the consent of Holders of the Notes; and

 

WHEREAS, all the conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Issuer and the Guarantors (together the “Obligors”) and the execution and delivery hereof have been in all respects duly authorized by the Obligors.

 

NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as follows:

 

1

 

 

ARTICLE oNE

REAFFIRMATION, ACCESSION AND AMENDMENT

 

Section 1.01.         Reaffirmation. The Issuer hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.

 

Section 1.02.         Note Guarantee.

 

(a)            Each New Guarantor hereby agrees to jointly and severally, fully, unconditionally and irrevocably guarantee the Notes and obligations of the Issuer under the Notes and the Indenture, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee on behalf of such Holder, that: (i) the principal of and premium, if any and interest on the Notes shall be paid in full when due, whether at Stated Maturity, by acceleration, call for redemption or otherwise (including, without limitation, the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Issuer to the Holders or the Trustee under the Notes and the Indenture 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 New Guarantees shall be a guarantee of payment and not of collection.

 

(b)            Each New Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of any Obligor.

 

(c)            Each New Guarantor hereby agrees to waive the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer or any other Person, protest, notice and all demands whatsoever and covenants that the New Guarantee of such New Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note or as provided for in this Supplemental Indenture. Each New Guarantor hereby agrees that, in the event of a default in payment of principal or premium, if any, or interest on such Note, whether at its Stated Maturity, by acceleration, 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 the Indenture, directly against such New Guarantor to enforce its New Guarantee without first proceeding against the Issuer or any other Guarantor. Each New Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such New 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 or any of the Holders.

 

2

 

 

(d)            If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, each New Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of the Indenture.

 

(e)            Each New Guarantor further agrees that, as between itself, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI of the Indenture for the purposes of its New Guarantee, 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 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by such New Guarantor for the purpose of its New Guarantee.

 

Section 1.03.         Severability. In case any provision of any New 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 1.04.         Limitation of Guarantors’ Liability. Each New Guarantor and by its acceptance of Notes, each Holder, confirms that it is the intention of all such parties that each New Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, the Holders, the Existing Guarantors and each New Guarantor hereby irrevocably agree that the obligations of each New Guarantor under its New Guarantee shall be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of such New Guarantor and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor or such New Guarantor in respect of the obligations of such other Guarantor or the New Guarantor under its guarantee, result in the obligations of any New Guarantor under its New Guarantee constituting a fraudulent transfer or conveyance. Notwithstanding any other provision of the Indenture or this Supplemental Indenture to the contrary, no obligation of the Issuer shall be (or shall be deemed to be) guaranteed by, or otherwise supported directly or indirectly by the assets of, any New Guarantor to the extent its New Guarantee could, as determined by the Issuer (acting reasonably and in good faith), result in material adverse U.S. tax consequences for the Issuer or any of its direct or indirect owners or subsidiaries.

 

Section 1.05.         Benefits Acknowledged. Each New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its New Guarantee and waivers pursuant to its New Guarantee are knowingly made in contemplation of such benefits.

 

3

 

 

Section 1.06.         Termination of Guarantee. The New Guarantee of any New Guarantor shall be automatically released and shall terminate upon (i) such New Guarantor ceasing to be an obligor (either as issuer or guarantor) in respect of any Capital Markets Debt if after giving effect thereto (and any other substantially concurrent transaction or transactions), such New Guarantor is no longer an obligor (either as issuer or guarantor) in respect of any Capital Markets Debt (other than, before giving effect to the release of its New Guarantee of the Notes, the Notes), (ii) the merger of such New Guarantor with or into another Obligor, (iii) the consolidation of such New Guarantor with another Obligor or (iv) the transfer of all or substantially all of the assets of such New Guarantor to another Obligor. At the written request of the Issuer, and subject to Section 11.4 of the Indenture, the Trustee will execute and deliver any documents or instruments reasonably required to evidence any such release.

 

Section 1.07.         Amendment to Section 11.2 of the Indenture. Section 11.2 (Notices) of the Base Indenture is hereby amended by replacing the address under Section 11.2(a) following “If to the Issuer or any Guarantor:” with:

 

Address: Smurfit WestRock

Beech Hill, Clonskeagh, Dublin 4, Ireland

Attention: Emer Murnane

Email: Emer.Murnane@smurfitkappa.com

Tel: +353 1 2600 900

 

ARTICLE two
MISCELLANEOUS PROVISIONS

 

Section 2.01.         Terms Defined. For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.

 

Section 2.02.         Indenture. Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. For the avoidance of doubt, the provisions of Article X of the Indenture shall not apply to the New Guarantees.

 

Section 2.03.         Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.

 

Section 2.04.         Successors. All agreements of the Issuer and each Guarantor in this Supplemental Indenture and the Notes shall bind their respective successors to the extent set forth in the Indenture.

 

Section 2.05.         Multiple Counterparts. This Supplemental Indenture may be signed in any number of counterparts each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Supplemental Indenture. Delivery of an executed counterpart signature page by e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

4

 

 

Section 2.06.         Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.

 

Section 2.07.         Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Issuer and the Guarantors, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Issuer and the Guarantors by corporate action or otherwise, (iii) the due execution hereof by the Issuer and the Guarantors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.

 

[Signature pages follow]

 

5

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above.

 

Very truly yours,
 
Issuer
 
WRKCO INC.
   
By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

Existing Guarantors
   
WESTROCK COMPANY
   
By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

WESTROCK MWV, LLC
   
By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

WESTROCK RKT, LLC
   
By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT WESTROCK PLC    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION
   
By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA GROUP PLC    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
    Name: Ken Bowles
    Title: CFO / Attorney
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square   /s/ Gillian Carson-Callan
Print Address   Signature
    Name: Gillian Carson-Callan
    Title: Company Secretary / Attorney
     
Solicitor    
Witness Occupation    

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA    
INVESTMENTS LIMITED    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA    
ACQUISITIONS UNLIMITED    
COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
UNLIMITED COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
FUNDING DESIGNATED    
ACTIVITY COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

SMURFIT INTERNATIONAL B.V.  
   
By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

 

By /s/ Michael C. Jenkins  
Name: Michael C. Jenkins  
Title: Vice President  

 

 [Supplemental Indenture to WRKCo Inc. 2018 Indenture] 
   

 

 

Exhibit 4.35

 

WESTROCK MWV, LLC

 

as Issuer,

 

THE NEW GUARANTORS PARTY HERETO

 

and

 

THE BANK OF NEW YORK MELLON

 

as Trustee

 

Fifth Supplemental Indenture

 

Dated as of July 5, 2024

 

to

 

Indenture

 

Dated as of March 1, 1983

 

 

 

 

FIFTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of July 5, 2024, by and among (i) WestRock MWV, LLC, a Delaware limited liability company (as successor to MeadWestvaco Corporation, the “Issuer”); (ii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors”); and (iii) The Bank of New York Mellon (as successor to Irving Trust Company), as trustee (the “Trustee”) under the hereafter defined Indenture.

 

WITNESSETH:

 

WHEREAS, the Issuer and the Trustee have previously executed and delivered an indenture, dated as of March 1, 1983, providing for the issuance from time to time of the Issuer’s Securities (as defined therein) (the “Base Indenture”), as amended and supplemented by the First Supplemental Indenture, dated as of January 31, 2002, the Second Supplemental Indenture, dated as of December 31, 2002, the Third Supplemental Indenture, dated as of July 1, 2015, and the Fourth Supplemental Indenture, dated as of November 2, 2018 (the Base Indenture, as so amended and supplemented, the “Indenture”), pursuant to which, among other things, WRKCo Inc., a Delaware corporation, WestRock RKT, LLC, a Georgia limited liability company, and WestRock (as hereinafter defined) became guarantors under the Indenture;

 

WHEREAS, the only Securities currently outstanding under the Indenture are the Issuer’s 8.200% Debentures due 2030 and 7.950% Debentures due 2031 (the “Notes”);

 

WHEREAS, pursuant to a transaction agreement, dated as of September 12, 2023, entered into by WestRock Company, a Delaware corporation (“WestRock”), Smurfit Kappa Group plc, an Irish public limited company (“SKG”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of Smurfit WestRock (the “Transaction Agreement”), SKG and WestRock will each become a wholly owned subsidiary of Smurfit WestRock (the “Combination”);

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture (the “Guarantees”);

 

WHEREAS, the Issuer proposes in and by this Supplemental Indenture to supplement and amend the Indenture in certain respects as it applies to the Notes (and any other series of Securities issued thereunder after the date of this Supplemental Indenture);

 

WHEREAS, pursuant to Section 901(9) of the Indenture, the Issuer, the New Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of Holders of the Notes; and

 

WHEREAS, all the conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Issuer and the New Guarantors (together the “Obligors”) and the execution and delivery hereof have been in all respects duly authorized by the Obligors.

 

2 

 

 

NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes and the Holders of any Securities issued under the Indenture after the date of this Supplemental Indenture, as follows:

 

Article One
REAFFIRMATION, ACCESSION AND AMENDMENT

 

SECTION 1.01.       Reaffirmation. The Issuer hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.

 

SECTION 1.02.       Note Guarantee.

 

(a)            Each New Guarantor unconditionally guarantees, on a joint and several basis, to each Holder of Notes (including each Holder of Securities issued under the Indenture after the date of this Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment of all monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture. Each New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Issuer (except to the extent such judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Notes (or such other Securities) to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of such New Guarantor (except that such waiver or amendment shall be effective in accordance with its terms).

 

(b)            Each New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.

 

(c)            Each New Guarantor further agrees to waive presentment to, demand of payment from and protest to the Issuer of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or bankruptcy of the Issuer and any right to require a proceeding first against the Issuer or any other Person. The obligations of each New Guarantor shall not be affected by any failure or policy on the part of the Trustee to exercise any right or remedy under the Indenture or the Notes of any series.

 

(d)            The obligation of each New Guarantor to make any payment hereunder may be satisfied by causing the Issuer or another Obligor to make such payment. If any Holder of any Note or the Trustee is required by any court or otherwise to return to the Issuer or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuer or any such Obligor any amount paid by any of them to the Trustee or such Holder, any applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

3 

 

 

(e)            Each New Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder of Notes in enforcing any of their respective rights under its Guarantee.

 

(f)             Any term or provision of this Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of each New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Supplemental Indenture, as it relates to such New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. Notwithstanding any other provision of the Indenture or this Supplemental Indenture to the contrary, no obligation of the Issuer shall be (or shall be deemed to be) guaranteed by, or otherwise supported directly or indirectly by the assets of, any New Guarantor to the extent its Guarantee could, as determined by the Issuer (acting reasonably and in good faith), result in material adverse U.S. tax consequences for the Issuer or any of its direct or indirect owners or subsidiaries.

 

SECTION 1.03.      Benefits Acknowledged. Each New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.

 

SECTION 1.04.       Termination of Guarantee. The Guarantee of each New Guarantor shall be automatically released and shall terminate upon (i) the merger of such New Guarantor with or into any other Obligor, (ii) the consolidation of such New Guarantor with another Obligor or (iii) the transfer of all or substantially all of the assets of such New Guarantor to another Obligor. At the written request of the Issuer, and subject to Section 102 of the Indenture, the Trustee will execute and deliver any documents or instruments reasonably required to evidence any such release.

 

Article Two
MISCELLANEOUS PROVISIONS

 

SECTION 2.01.       Terms Defined. For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture.

 

SECTION 2.02.       This Supplemental Indenture. This Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part of it, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed.

 

SECTION 2.03.       Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.

 

SECTION 2.04.       Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

4 

 

 

SECTION 2.05.       Counterparts. This Supplemental Indenture may be executed in multiple counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument. Delivery of an executed counterpart signature page by e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

SECTION 2.06.       Headings. The headings of this Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.

 

SECTION 2.07.       Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Obligors, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Obligors by corporate action or otherwise, (iii) the due execution hereof by the Obligors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.

 

SECTION 2.08.       Separability. In case one or more of the provisions contained in this Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Supplemental Indenture or of the Notes, but this Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

 

SECTION 2.09.       Successors and Assigns. All agreements of the Issuer in this Supplemental Indenture and the Notes shall bind its successors, all agreements of each New Guarantor in this Supplemental Indenture shall bind its successors and all agreements of the Trustee in this Supplemental Indenture shall bind its successors.

 

[Signature pages follow]

 

5 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above.

 

Very truly yours, 
   
Issuer 
   
WESTROCK MWV, LLC 
   
By/s/ M. Benjamin Haislip  
Name:M. Benjamin Haislip 
Title:Senior Vice President and Treasurer 

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT WESTROCK PLC    
by its duly authorized attorney    
     
in the presence of   /s/ Ken Bowles
and delivered as a deed   Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION

 

By/s/ Ken Bowles 
Name:Ken Bowles 
Title: Authorised Signatory 

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA GROUP PLC    
by its duly authorized attorney    
     
in the presence of   /s/ Ken Bowles
and delivered as a deed   Signature
    Name: Ken Bowles
/s/ Rory Carbery   Title: CFO / Attorney
Witness (Signature)    
     
2 Grand Canal Square   /s/ Gillian Carson-Callan
Print Address   Signature
    Name: Gillian Carson-Callan
Solicitor   Title: Company Secretary / Attorney
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA    
INVESTMENTS LIMITED    
by its duly authorized attorney    
     
in the presence of   /s/ Ken Bowles
and delivered as a deed   Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA    
ACQUISITIONS UNLIMITED    
COMPANY    
by its duly authorized attorney    
     
in the presence of   /s/ Ken Bowles
and delivered as a deed   Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
UNLIMITED COMPANY    
by its duly authorized attorney    
     
in the presence of   /s/ Ken Bowles
and delivered as a deed   Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
FUNDING DESIGNATED    
ACTIVITY COMPANY    
by its duly authorized attorney    
     
in the presence of   /s/ Ken Bowles
and delivered as a deed   Signature
     
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

 

SMURFIT INTERNATIONAL B.V.

 

By /s/ Ken Bowles 
Name:Ken Bowles 
Title:Authorised Signatory 

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

 

THE BANK OF NEW YORK MELLON, as Trustee

 

By /s/ Stacey B. Poindexter 
Name:Stacey B. Poindexter 
Title:Vice President 

 

[Supplemental Indenture to WestRock MWV 1983 Indenture]

 

 

 

Exhibit 4.42

 

WESTROCK MWV, LLC

 

as Issuer,

 

THE NEW GUARANTORS PARTY HERETO

 

and

 

THE BANK OF NEW YORK MELLON

 

as Trustee

 

Sixth Supplemental Indenture

 

Dated as of July 5, 2024

 

to

 

Indenture

 

Dated as of February 1, 1993

 

 

 

SIXTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of July 5, 2024, by and among (i) WestRock MWV, LLC, a Delaware limited liability company (as successor to MeadWestvaco Corporation, the “Issuer”); (ii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors”); and (iii) The Bank of New York Mellon (as successor to The First National Bank of Chicago), as trustee (the “Trustee”) under the hereafter defined Indenture.

 

WITNESSETH:

 

WHEREAS, the Issuer and the Trustee have previously executed and delivered an indenture, dated as of February 1, 1993, providing for the issuance from time to time of the Issuer’s Securities (as defined therein) (the “Base Indenture”), as amended and supplemented by the First Supplemental Indenture, dated as of January 31, 2002, the Second Supplemental Indenture, dated as of December 31, 2002, the Third Supplemental Indenture, dated as of December 31, 2002, the Fourth Supplemental Indenture, dated as of July 1, 2015 and the Fifth Supplemental Indenture, dated as of November 2, 2018 (the Base Indenture, as so amended and supplemented, the “Indenture”), pursuant to which, among other things, WRKCo Inc., a Delaware corporation, WestRock RKT, LLC, a Georgia limited liability company, and WestRock (as hereinafter defined) became guarantors under the Indenture;

 

WHEREAS, the only Securities currently outstanding under the Indenture are the Issuer’s 6.840% Debentures due 2037 and 7.550% Debentures due 2047 (the “Notes”);

 

WHEREAS, pursuant to a transaction agreement, dated as of September 12, 2023, entered into by WestRock Company, a Delaware corporation (“WestRock”), Smurfit Kappa Group plc, an Irish public limited company (“SKG”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of Smurfit WestRock (the “Transaction Agreement”), SKG and WestRock will each become a wholly owned subsidiary of Smurfit WestRock (the “Combination”);

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture (the “Guarantees”);

 

WHEREAS, the Issuer proposes in and by this Supplemental Indenture to supplement and amend the Indenture in certain respects as it applies to the Notes (and any other series of Securities issued thereunder after the date of this Supplemental Indenture);

 

WHEREAS, pursuant to Section 901(9) of the Indenture, the Issuer, the New Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of Holders of the Notes; and

 

WHEREAS, all the conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Issuer and the New Guarantors (together the “Obligors”) and the execution and delivery hereof have been in all respects duly authorized by the Obligors.

 

2

 

 

NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes and the Holders of any Securities issued under the Indenture after the date of this Supplemental Indenture, as follows:

 

Article One
REAFFIRMATION, ACCESSION AND AMENDMENT

 

SECTION 1.01.         Reaffirmation. The Issuer hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.

 

SECTION 1.02.         Note Guarantee.

 

(a)            Each New Guarantor unconditionally guarantees, on a joint and several basis, to each Holder of Notes (including each Holder of Securities issued under the Indenture after the date of this Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment of all monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture. Each New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Issuer (except to the extent such judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Notes (or such other Securities) to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of such New Guarantor (except that such waiver or amendment shall be effective in accordance with its terms).

 

(b)            Each New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.

 

(c)            Each New Guarantor further agrees to waive presentment to, demand of payment from and protest to the Issuer of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or bankruptcy of the Issuer and any right to require a proceeding first against the Issuer or any other Person. The obligations of each New Guarantor shall not be affected by any failure or policy on the part of the Trustee to exercise any right or remedy under the Indenture or the Notes of any series.

 

(d)            The obligation of each New Guarantor to make any payment hereunder may be satisfied by causing the Issuer or another Obligor to make such payment. If any Holder of any Note or the Trustee is required by any court or otherwise to return to the Issuer or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuer or any such Obligor any amount paid by any of them to the Trustee or such Holder, any applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

3

 

 

(e)            Each New Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder of Notes in enforcing any of their respective rights under its Guarantee.

 

(f)            Any term or provision of this Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of each New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Supplemental Indenture, as it relates to such New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. Notwithstanding any other provision of the Indenture or this Supplemental Indenture to the contrary, no obligation of the Issuer shall be (or shall be deemed to be) guaranteed by, or otherwise supported directly or indirectly by the assets of, any New Guarantor to the extent its Guarantee could, as determined by the Issuer (acting reasonably and in good faith), result in material adverse U.S. tax consequences for the Issuer or any of its direct or indirect owners or subsidiaries.

 

SECTION 1.03.         Benefits Acknowledged. Each New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.

 

SECTION 1.04.         Termination of Guarantee. The Guarantee of each New Guarantor shall be automatically released and shall terminate upon (i) the merger of such New Guarantor with or into any other Obligor, (ii) the consolidation of such New Guarantor with another Obligor or (iii) the transfer of all or substantially all of the assets of such New Guarantor to another Obligor. At the written request of the Issuer, and subject to Section 102 of the Indenture, the Trustee will execute and deliver any documents or instruments reasonably required to evidence any such release.

 

Article Two
MISCELLANEOUS PROVISIONS

 

SECTION 2.01.         Terms Defined. For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture.

 

SECTION 2.02.         This Supplemental Indenture. This Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part of it, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed.

 

SECTION 2.03.         Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.

 

SECTION 2.04.         Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

4

 

 

SECTION 2.05.         Counterparts. This Supplemental Indenture may be executed in multiple counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument. Delivery of an executed counterpart signature page by e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

SECTION 2.06.         Headings. The headings of this Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.

 

SECTION 2.07.         Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Obligors, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Obligors by corporate action or otherwise, (iii) the due execution hereof by the Obligors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.

 

SECTION 2.08.         Separability. In case one or more of the provisions contained in this Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Supplemental Indenture or of the Notes, but this Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

 

SECTION 2.09.         Successors and Assigns. All agreements of the Issuer in this Supplemental Indenture and the Notes shall bind its successors, all agreements of each New Guarantor in this Supplemental Indenture shall bind its successors and all agreements of the Trustee in this Supplemental Indenture shall bind its successors.

 

[Signature pages follow]

 

5

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above.

 

Very truly yours,

 

Issuer

 

WESTROCK MWV, LLC  
   
By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT WESTROCK PLC    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION  
   
By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

     
SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA GROUP PLC    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
    Name: Ken Bowles
    Title: CFO / Attorney
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square   /s/ Gillian Carson-Callan
Print Address   Signature
    Name: Gillian Carson-Callan
    Title: Company Secretary / Attorney
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA    
INVESTMENTS LIMITED    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA    
ACQUISITIONS UNLIMITED    
COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
UNLIMITED COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
FUNDING DESIGNATED    
ACTIVITY COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

 

SMURFIT INTERNATIONAL B.V.  
   
By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

 

THE BANK OF NEW YORK MELLON, as Trustee  
   
By /s/ Stacey B. Poindexter  
Name: Stacey B. Poindexter  
Title: Vice President  

 

[Supplemental Indenture to WestRock MWV 1993 Indenture]

 

 

 

Exhibit 4.46

 

WESTROCK MWV, LLC

 

as Issuer,

 

THE NEW GUARANTORS PARTY HERETO

 

and

 

THE BANK OF NEW YORK MELLON

 

as Trustee

 

Third Supplemental Indenture

 

Dated as of July 5, 2024

 

to

 

Indenture

 

Dated as of April 2, 2002

 

 

 

THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of July 5, 2024, by and among (i) WestRock MWV, LLC, a Delaware limited liability company (as successor to MeadWestvaco Corporation, the “Issuer”); (ii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors”); and (iii) The Bank of New York Mellon (formerly known as The Bank of New York), as trustee (the “Trustee”) under the hereafter defined Indenture.

 

WITNESSETH:

 

WHEREAS, the Issuer and the Trustee have previously executed and delivered an indenture, dated as of April 2, 2002, providing for the issuance from time to time of the Issuer’s Securities (as defined therein) (the “Base Indenture”), as amended and supplemented by the First Supplemental Indenture, dated as of July 1, 2015, and the Second Supplemental Indenture, dated as of November 2, 2018 (the Base Indenture, as so supplemented, the “Indenture”), pursuant to which, among other things, WRKCo Inc., a Delaware corporation, WestRock RKT, LLC, a Georgia limited liability company, and WestRock (as hereinafter defined) became guarantors under the Indenture;

 

WHEREAS, the only Securities currently outstanding under the Indenture are the Issuer’s 6.800% Debentures due 2032 (the “Notes”);

 

WHEREAS, pursuant to a transaction agreement, dated as of September 12, 2023, entered into by WestRock Company, a Delaware corporation (“WestRock”), Smurfit Kappa Group plc, an Irish public limited company (“SKG”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of Smurfit WestRock (the “Transaction Agreement”), SKG and WestRock will each become a wholly owned subsidiary of Smurfit WestRock (the “Combination”);

 

WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture (the “Guarantees”);

 

WHEREAS, the Issuer proposes in and by this Supplemental Indenture to supplement and amend the Indenture in certain respects as it applies to the Notes (and any other series of Securities issued thereunder after the date of this Supplemental Indenture);

 

WHEREAS, pursuant to Section 901(9) of the Indenture, the Issuer, the New Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of Holders of the Notes; and

 

WHEREAS, all the conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Issuer and the New Guarantors (together the “Obligors”) and the execution and delivery hereof have been in all respects duly authorized by the Obligors.

 

2

 

 

NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes and the Holders of any Securities issued under the Indenture after the date of this Supplemental Indenture, as follows:

 

Article One
REAFFIRMATION, ACCESSION AND AMENDMENT

 

SECTION 1.01.         Reaffirmation. The Issuer hereby expressly and unconditionally reaffirms each and every covenant, agreement and undertaking of such party in the Indenture.

 

SECTION 1.02.         Note Guarantee.

 

(a)            Each New Guarantor unconditionally guarantees, on a joint and several basis, to each Holder of Notes (including each Holder of Securities issued under the Indenture after the date of this Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment of all monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture. Each New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Issuer (except to the extent such judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Notes (or such other Securities) to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of such New Guarantor (except that such waiver or amendment shall be effective in accordance with its terms).

 

(b)            Each New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.

 

(c)            Each New Guarantor further agrees to waive presentment to, demand of payment from and protest to the Issuer of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or bankruptcy of the Issuer and any right to require a proceeding first against the Issuer or any other Person. The obligations of each New Guarantor shall not be affected by any failure or policy on the part of the Trustee to exercise any right or remedy under the Indenture or the Notes of any series.

 

(d)            The obligation of each New Guarantor to make any payment hereunder may be satisfied by causing the Issuer or another Obligor to make such payment. If any Holder of any Note or the Trustee is required by any court or otherwise to return to the Issuer or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuer or any such Obligor any amount paid by any of them to the Trustee or such Holder, any applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

3

 

 

(e)            Each New Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder of Notes in enforcing any of their respective rights under its Guarantee.

 

(f)            Any term or provision of this Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of each New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Supplemental Indenture, as it relates to such New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. Notwithstanding any other provision of the Indenture or this Supplemental Indenture to the contrary, no obligation of the Issuer shall be (or shall be deemed to be) guaranteed by, or otherwise supported directly or indirectly by the assets of, any New Guarantor to the extent its Guarantee could, as determined by the Issuer (acting reasonably and in good faith), result in material adverse U.S. tax consequences for the Issuer or any of its direct or indirect owners or subsidiaries.

 

SECTION 1.03.         Benefits Acknowledged. Each New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.

 

SECTION 1.04.         Termination of Guarantee. The Guarantee of each New Guarantor shall be automatically released and shall terminate upon (i) the termination of the New Guarantor’s Guarantee of the Issuer’s obligations under each of the Bank Credit Facilities (as defined in the Base Indenture), (ii) the merger of such New Guarantor with or into any other Obligor, (iii) the consolidation of such New Guarantor with another Obligor or (iv) the transfer of all or substantially all of the assets of such New Guarantor to another Obligor. At the written request of the Issuer, and subject to Section 102 of the Indenture, the Trustee will execute and deliver any documents or instruments reasonably required to evidence any such release.

 

Article Two
MISCELLANEOUS PROVISIONS

 

SECTION 2.01.         Terms Defined. For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture.

 

SECTION 2.02.         This Supplemental Indenture. This Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part of it, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed. For the avoidance of doubt, the provisions of Article 14 of the Indenture shall not apply to the Guarantees.

 

SECTION 2.03.         Effectiveness. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of the Indenture.

 

4

 

 

SECTION 2.04.         Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

SECTION 2.05.         Counterparts. This Supplemental Indenture may be executed in multiple counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument. Delivery of an executed counterpart signature page by e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.

 

SECTION 2.06.         Headings. The headings of this Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.

 

SECTION 2.07.         Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Obligors, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Obligors by corporate action or otherwise, (iii) the due execution hereof by the Obligors and/or (iv) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.

 

SECTION 2.08.         Separability. In case one or more of the provisions contained in this Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Supplemental Indenture or of the Notes, but this Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

 

SECTION 2.09.         Successors and Assigns. All agreements of the Issuer in this Supplemental Indenture and the Notes shall bind its successors, all agreements of each New Guarantor in this Supplemental Indenture shall bind its successors and all agreements of the Trustee in this Supplemental Indenture shall bind its successors.

 

[Signature pages follow]

 

5

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above.

 

Very truly yours,

 

Issuer

   
WESTROCK MWV, LLC  
   
By /s/ M. Benjamin Haislip  
Name: M. Benjamin Haislip  
Title: Senior Vice President and Treasurer  

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

 

New Guarantors

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT WESTROCK PLC    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

 

SMURFIT WESTROCK US HOLDINGS CORPORATION  
   
By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

 

     
SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA GROUP PLC    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
    Name: Ken Bowles
    Title: CFO / Attorney
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square   /s/ Gillian Carson-Callan
Print Address   Signature
    Name: Gillian Carson-Callan
    Title: Company Secretary / Attorney
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA    
INVESTMENTS LIMITED    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA    
ACQUISITIONS UNLIMITED    
COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
UNLIMITED COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

 

SIGNED and DELIVERED as a deed    
for and on behalf of    
SMURFIT KAPPA TREASURY    
FUNDING DESIGNATED    
ACTIVITY COMPANY    
by its duly authorized attorney    
     
in the presence of and delivered as a deed   /s/ Ken Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation    

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

 

SMURFIT INTERNATIONAL B.V.  
   
By /s/ Ken Bowles  
Name: Ken Bowles  
Title: Authorised Signatory  

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

 

THE BANK OF NEW YORK MELLON, as Trustee  
   
By /s/ Stacey B. Poindexter  
Name: Stacey B. Poindexter  
Title: Vice President  

 

[Supplemental Indenture to WestRock MWV 2002 Indenture]

 

 

Exhibit 10.1

 

[Date]

 

 

 

SMURFIT WESTROCK PLC

 

AND

 

[         ]

 

 

 

 

 

 

FORM OF
DEED OF INDEMNIFICATION

 

 

 

 

 

 

CONTENTS

 

Page No

 

1 Interpretation 1
     
2 Agreement to Serve 6
     
3 Indemnity of Indemnitee 6
     
4 Determination of Entitlement to Indemnification 6
     
5 Advancement of Expenses 8
     
6 Remedies of the Indemnitee in Cases of Determination Not to Indemnify or to Advance Expenses or Failure to Timely Pay 8
     
7 Other Rights to Indemnification 8
     
8 Attorneys' Fees and Other Expenses to Enforce Deed 9
     
9 Limitations of Indemnification 9
     
10 Liability Insurance 10
     
11 Duration of Deed 10
     
12 Notice of Proceedings by the Indemnitee 10
     
13 Notices 11
     
14 Miscellaneous 11

 

 

 

 

THIS DEED OF INDEMNIFICATION (this “Deed”) is effective as of [date].

 

BETWEEN:

 

(1)SMURFIT WESTROCK PLC, a public limited company incorporated under the laws of Ireland with company number 607515 and with its registered address at Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland (the “Company”, and together with its subsidiaries the “Group”);

 

AND

 

(2)[Name] of [address] (the “Indemnitee”).

 

WHEREAS:

 

A.Highly skilled and competent persons are reluctant to serve public companies as directors, secretaries and / or Section 16 Officers (as defined below) unless they are provided with adequate protection through insurance and indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of such companies and uncertainties relating to indemnification increase the difficulty of attracting and retaining such persons.

 

B.The Board (as defined below) has determined that an inability to attract and retain such persons is detrimental to the best interests of the Group and its shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection.

 

C.The Company desires to ensure that the Group and its shareholders benefit from the services of highly skilled and competent persons such as the Indemnitee, and has requested that the Indemnitee serve as a [director][secretary][Section 16 Officer] of the Company.

 

D.It is reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify the Indemnitee to the Fullest Extent Permitted By Law (as defined below) so that the Indemnitee will serve or continue to serve the Company free from undue concern that the Indemnitee will not be so indemnified.

 

E.In partial consideration of the above premises and of the Indemnitee serving or continuing to serve the Company, the Company has agreed to enter into this Deed with the Indemnitee.

 

F.This Deed is a supplement to and in furtherance of the Constitution (as defined below) and any resolutions adopted pursuant thereto, as well as any rights of the Indemnitee under any directors’ and officers’ liability insurance policy, and is not a substitute therefor, and does not diminish or abrogate any rights of the Indemnitee thereunder.

 

NOW THEREFORE THIS DEED WITNESSES as follows:

 

1Interpretation

 

1.1In this Deed, the following words and expressions shall have the following meanings:

 

“Affiliate” has the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act;

 

 1 

 

 

“Assets” means the assets of any kind owned by the Company, including, without limitation, the securities of the Subsidiaries and any of the assets owned by the Subsidiaries;

 

“Beneficial Owner” has the meaning set forth in Rule 13d-3 under the Exchange Act;

 

“Board” means the board of directors of the Company;

 

“Board Designee” means any director or officer of the Company as may be designated by the Board from time to time to exercise the rights of the Board Designee set forth in clause 4 in lieu of the Board unless otherwise determined by the Board (it being acknowledged that the Board has authorized and approved that any of the Group President & Chief Executive Officer or General Counsel of the Company may act as a Board Designee under this Deed until such time as determined by the Board); provided, however, that no action taken by a Board Designee shall be valid unless notice thereof is promptly delivered to the Board and any such action shall not be in respect of any Proceedings to which such Board Designee was, is or is reasonably expected to be a party and provided further that the Board may revoke the powers of any Board Designee at any time by written notice to the Board Designee, but any such revocation shall not affect any prior act of a Board Designee unless such act is determined by the Board to have been taken by the Board Designee in bad faith;

 

“Business Day” means a day other than a Saturday, Sunday or public holiday on which clearing banks are generally open for non-automated business in Dublin, Ireland and in Atlanta, Georgia, United States;

 

"Change in Control" means the occurrence of any event set forth in any one of the following paragraphs:

 

(a)any Person is, or becomes, the Beneficial Owner, directly or indirectly, of 30% or more of either: (A) the then issued ordinary shares in the capital of the Company (the “Outstanding Company Issued Shares”); or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors at general meetings of the Company (the “Outstanding Company Voting Securities”), excluding any Person who becomes such a Beneficial Owner in connection with a transaction that complies with clauses (A), (B) and (C) of paragraph (c) below;

 

(b)during any period of two (2) consecutive years (not including any period prior to the execution of this Deed), individuals who at the beginning of such period constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a simple majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least two-thirds (2/3) of the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or any other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

 

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(c)the consummation of an acquisition, reorganization, reincorporation, redomestication, merger, amalgamation, consolidation, plan or scheme of arrangement, exchange offer, business combination or similar transaction of the Company or any of the Subsidiaries or the sale, transfer or other disposition of all or substantially all of the Company's Assets (any of which a “Corporate Transaction”), unless, following such Corporate Transaction or series of related Corporate Transactions, as the case may be: (A) all of the individuals and Entities who were the Beneficial Owners, respectively, of the Outstanding Company Issued Shares and Outstanding Company Voting Securities immediately prior to such Corporate Transaction own or beneficially own, directly or indirectly, more than 50% of, respectively, the Outstanding Company Issued Shares and the combined voting power of the Outstanding Company Voting Securities entitled to vote generally in the election of directors (or other governing body), as the case may be, of the Entity resulting from such Corporate Transaction (including, without limitation, an Entity (including any new parent Entity) which as a result of such transaction owns the Company or all or substantially all of the Company's Assets either directly or through one or more Entities) in substantially the same proportions as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Company Issued Shares and the Outstanding Company Voting Securities, as the case may be; (B) no Person (excluding any Entity resulting from such Corporate Transaction or any employee benefit plan (or related trust) of the Company or such Entity resulting from such Corporate Transaction) beneficially owns, directly or indirectly, 30% or more of, respectively, the then issued ordinary shares (or outstanding shares of common stock) of the Entity resulting from such Corporate Transaction or the combined voting power of the then outstanding voting securities of such Entity except to the extent that such ownership existed prior to the Corporate Transaction; and (C) at least a simple majority of the members of the board of directors (or other governing body) of the Entity resulting from such Corporate Transaction were members of the Incumbent Board at the time of the approval of such Corporate Transaction; or

 

(d)approval or adoption by the Board or the shareholders of the Company of a plan or proposal which could result directly or indirectly in the liquidation, transfer, sale or other disposal of all or substantially all of the Company's Assets or the dissolution of the Company, excluding any transaction that complies with clauses (A), (B) and (C) of paragraph (c) above;

 

“Companies Act” means the Companies Act 2014 of Ireland, as amended;

 

“Constitution” means the memorandum of association and articles of association of the Company;

 

“Disinterested Director” means a director of the Company who is not or was not a party to a Proceeding in respect of which indemnification is sought by the Indemnitee;

 

“Entity” means any corporation, partnership, association, joint-stock company, limited liability company, trust, unincorporated organization or other business entity;

 

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time;

 

“Expenses” shall mean all costs, expenses, and obligations paid or incurred in connection with investigating, litigating, being a witness in, defending or participating in, or preparing to litigate, defend, be a witness in or participate in any matter that is the subject of a Proceeding, including attorneys', experts', accountants' or other advisors’ fees and court costs and including any premium, security and other costs relating to the posting of any bond or its equivalent;

 

 3 

 

 

“Fullest Extent Permitted by Law” means the maximum extent authorized or permitted by the Companies Act or other applicable law (which shall include applicable stock exchange rules), as such laws may from time to time be amended to increase the scope of such permitted indemnification;

 

“Group Companies” means the Company and each Subsidiary (wherever incorporated or organised);

 

“Independent Counsel” means a law firm or a member of a law firm that neither is presently nor in the past 5 years has been retained to represent: (i) the Company or the Indemnitee in any matter material to any such party; or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing the Company or the Indemnitee in an action to determine the Indemnitee's right to indemnification under this Deed;

 

“Parties” means the parties to this Deed collectively, and "Party" means any one of them;

 

“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of the Subsidiaries; (ii) a trustee or other fiduciary holding securities under terms of an employee benefit and compensation plans, agreements, arrangements, programs, policies, practices, contracts or agreement of the Company and its Affiliates; (iii) an underwriter temporarily holding securities pursuant to an offering by the Company of such securities; or (iv) a corporation or other Entity owned, directly or indirectly, by the shareholders of the Company in the same proportions as their ownership of issued shares of the Company;

 

“Proceeding” means any actual, threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any other actual, threatened, pending or completed proceeding, inquiry, hearing or investigation, whether civil, criminal, administrative or investigative and whether formal or informal and whether brought by or in the right of the Company or otherwise (including, but not limited to, the investigation, defence, settlement or appeal of any of the forgoing);

 

“Section 16 Officer” means a director and / or officer of the Company subject to Section 16 of the Exchange Act; and

 

“Subsidiary” means any majority-owned subsidiary of the Company or any majority-owned subsidiary thereof, or any other Entity in which the Company owns, directly or indirectly, a significant financial interest, provided that the President & Group Chief Executive Officer of the Company designates such Entity to be a Subsidiary for the purposes of this Deed.

 

1.2In this Deed, unless the context otherwise requires or unless otherwise specified:

 

1.2.1any reference to any statute, statutory provision or to any order or regulation shall be construed as a reference to that statute, provision, order or regulation as extended, modified, amended, replaced or re-enacted from time to time (whether before or after the date of this Deed) and all statutory instruments, regulations and orders from time to time made thereunder or deriving validity therefrom (whether before or after the date of this Deed);

 

 4 

 

 

1.2.2words denoting any gender include all genders and words denoting the singular include the plural and vice versa;

 

1.2.3all references to recitals, sections, clauses, paragraphs, schedules and annexes are to recitals in, sections, clauses and paragraphs of and schedules and annexes to this Deed, unless otherwise specifically stated;

 

1.2.4headings are for convenience only and shall not affect the interpretation of this Deed;

 

1.2.5general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things, and general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words and any reference to the word “include” or “including” is to be construed without limitation;

 

1.2.6words such as “hereunder”, “hereto”, “hereof” and “herein” and other words commencing with “here” shall unless the context clearly indicates to the contrary refer to the whole of this Deed and not to any particular section, clause or paragraph hereof;

 

1.2.7any reference to this Deed, to any other deed, agreement or document or to any specified provision of this Deed or any other deed, agreement or document is to this Deed, that deed, agreement or document or that specified provision, in each case as amended from time to time in accordance with the terms of this Deed or that other deed, agreement or document, as the case may be;

 

1.2.8any reference to a “person” shall be construed as a reference to any individual, firm, company, corporation, body corporate, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing;

 

1.2.9any reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established;

 

1.2.10any reference to a Party or other person includes his, her or its successors, personal representatives and permitted assigns;

 

1.2.11any reference to “writing” or any similar expression includes transmission by email or other comparable means of electronic communication; provided, however, that where such notice is served under this Deed by email or other comparable means of electronic communication, it must clearly and unambiguously state at the beginning of such communication that such communication constitutes a notice for the purpose of this Deed;

 

1.2.12if any action or duty to be taken or performed under any of the provisions of this Deed would fall to be taken or performed on a day which is not a Business Day, such action or duty shall be taken or performed on the Business Day next following such day; and

 

1.2.13for the avoidance of doubt, any reference to Ireland does not include Northern Ireland.

 

1.3The Parties have participated jointly in the negotiating and drafting of this Deed. In the event that an ambiguity or question of intent or interpretation arises, this Deed shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favouring or disfavouring either Party by virtue of the authorship of any of the provisions of this Deed.

 

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2Agreement to Serve

 

The Indemnitee is a [director][secretary][Section 16 Officer] of the Company. This Deed does not create or otherwise establish any right on the part of the Indemnitee to be and continue to be elected or appointed or employed as a [director][secretary][Section 16 Officer] of the Company or any other Group Company and does not create an employment contract or other employment arrangement between the Company and the Indemnitee.

 

3Indemnity of Indemnitee

 

3.1Subject to clause 9, the Company shall, to the Fullest Extent Permitted By Law and without prejudice to any other indemnity to which the Indemnitee may otherwise be entitled, indemnify, defend and hold harmless the Indemnitee against all damages, losses, liabilities, judgments, penalties, fines, amounts paid in settlement, and reasonable Expenses if the Indemnitee was, is or becomes party to or witness or other participant in, or is threatened to be made a party or witness or other participant in, any Proceeding, including a Proceeding brought by or in the right of the Company, in whole or in part by reason of (or arising in whole or in part out of) the fact or assertion that the Indemnitee (i) is, or was, serving as a director, officer, employee, agent, or fiduciary of the Company or another Group Company or (ii) is or was serving, at the request of the Company or another Group Company, as a director, officer, employee, agent, or fiduciary of any other company, corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other Entity or enterprise or by reason of anything done or not done by the Indemnitee in any such capacity.

 

3.2Subject to clause 9, if the Indemnitee is entitled under any provision of this Deed to indemnification for some or a portion of Expenses, damages, losses, liabilities, judgments, penalties, fines and amounts paid in settlement, but not the total amount thereof, the Company shall indemnify, defend and hold harmless the Indemnitee for such portion of the Expenses, damages, losses, liabilities, judgments, penalties, fines, amounts paid in settlement and any other amounts that the Indemnitee becomes legally obligated to pay in connection with any Proceeding to which the Indemnitee is entitled.

 

4Determination of Entitlement to Indemnification

 

4.1The Indemnitee shall request indemnification pursuant to this Deed by notice in writing to the General Counsel of the Company or, if not the same person, to the secretary of the Company. The secretary shall, promptly upon receipt of the Indemnitee's request for indemnification, advise in writing the Board and the Board Designee or such other person or persons empowered to make the determination as provided in clause 4.2 that the Indemnitee has made such request for indemnification. Subject to clause 9, upon making such request for indemnification, the Indemnitee shall be presumed to be entitled to indemnification hereunder and the Company shall have the burden of proof in the making of any determination contrary to such presumption.

 

4.2Upon written request by the Indemnitee for indemnification pursuant to clause 3.1, and subject to the presumption set forth in clause 4.1, the entitlement of the Indemnitee to indemnification pursuant to the terms of this Deed shall be determined in the following circumstances and by the following person or persons who, in each instance, shall be empowered to make such determination:

 

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4.2.1if a Change in Control shall not have occurred,

 

(a)by the Board, by a majority vote of the Disinterested Directors, or by the Board Designee; or

 

(b)if such Board vote or the Board Designee determination under clause 4.2.1(a) is not obtainable or, even if obtainable, if such Disinterested Directors (by majority vote) or the Board Designee so directs, or if the Indemnitee so requests, by Independent Counsel in a written opinion to the Board and the Board Designee, a copy of which shall be delivered to the Indemnitee; and

 

4.2.2if a Change in Control shall have occurred,

 

(a)by Independent Counsel in a written opinion to the Board and the Board Designee, a copy of which shall be delivered to the Indemnitee; or

 

(b)at the Indemnitee's sole option, the Indemnitee shall have the right to direct that such determination be made in the manner provided in clause 4.2.1.

 

4.3For the purposes of clause 4.2.1(b), Independent Counsel shall be selected by the Board or the Board Designee and reasonably approved by the Indemnitee and, for the purposes of clause 4.2.2, Independent Counsel shall be reasonably selected by the Indemnitee. Upon failure of the Board or the Board Designee to so select such Independent Counsel or upon failure of the Indemnitee to so approve, such Independent Counsel shall be selected by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Such determination of entitlement to indemnification pursuant to clause 4.2, regardless of whether by the Board or Independent Counsel, shall be made not later than 60 days after receipt by the Company of a written request for indemnification. The Indemnitee shall cooperate with the Board or Independent Counsel, as applicable, making such determination, including providing, upon reasonable request, any documentation or information which is reasonably necessary for such determination which is not privileged and which is reasonably available to the Indemnitee. Subject to clause 9, any reasonable Expenses incurred by the Indemnitee in connection with the Indemnitee's request for indemnification hereunder shall be borne by the Company irrespective of the outcome of the determination of the Indemnitee's entitlement to indemnification. If the person or persons making such determination shall determine that the Indemnitee is entitled to indemnification as to part, but not all, of the application for indemnification, such persons may, subject to clause 9, reasonably pro rate such partial indemnification among such claims, issues or matters in respect of which indemnification is requested.

 

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5Advancement of Expenses

 

Subject to clause 9, all reasonable Expenses incurred by, and advances of disbursements required of, the Indemnitee in connection with any Proceeding and in connection with the Indemnitee seeking an adjudication or award in arbitration pursuant to this Deed shall, at the request of the Indemnitee, be paid by the Company in advance of the final disposition of any such Proceeding, adjudication or arbitration as promptly as possible, and in any event within 20 days after the receipt by the Company of a statement or statements from the Indemnitee requesting such advance or advances from time to time. Such statement or statements shall reasonably evidence the Expenses incurred by, or disbursements required of, the Indemnitee in connection therewith. Notwithstanding any determination as to entitlement to indemnification made pursuant to clause 4 or clause 6, the Indemnitee agrees that it will forthwith (and, in any event, not later than 20 days from the date the Company provides a written demand therefor) repay any advance of funds made by the Company pursuant to this clause 5 in the event of any allegation of fraud or dishonesty in the relevant Proceeding is proved against the Indemnitee or if it is otherwise determined under applicable law that the Indemnitee is not entitled to be indemnified. Subject to clause 9, the Company shall have the burden of proof in any determination under this clause 5. No amounts advanced hereunder shall be deemed an extension of credit by the Company to the Indemnitee. To the Fullest Extent Permitted By Law, advances shall be unsecured and interest free and the Indemnitee’s right to advances under this clause 5 shall in all events continue until final disposition of any Proceeding, including any appeal therein.

 

6Remedies of the Indemnitee in Cases of Determination Not to Indemnify or to Advance Expenses or Failure to Timely Pay

 

6.1In the event that: (a) a determination is made that the Indemnitee is not entitled to indemnification hereunder pursuant to clause 4.2; (b) payment has not been timely made following a determination of entitlement to indemnification pursuant to clause 4; or (c) Expenses or disbursements required of the Indemnitee are not advanced pursuant to clause 5, the Indemnitee shall be entitled to apply to a court of competent jurisdiction for a determination of the Indemnitee's entitlement to such indemnification, indemnification payment or advance.

 

6.2Alternatively to clause 6.1, the Indemnitee, at the Indemnitee's sole option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association, such award to be made within 60 days following the Indemnitee's filing of the request for arbitration. The Company shall not oppose the Indemnitee's right to seek any such adjudication or award in arbitration or any other claim.

 

6.3A judicial proceeding or arbitration pursuant to this clause 6 shall be made de novo and the Indemnitee shall not be prejudiced by reason of a determination otherwise made hereunder (if so made) that the Indemnitee is not entitled to indemnification. If the court or arbitrator shall determine that the Indemnitee is entitled to any indemnification or advance hereunder, the Company shall pay all reasonable Expenses actually incurred by the Indemnitee in connection with such adjudication or award in arbitration (including, but not limited to, any appellate proceedings) (the "Clause 6 Expenses"), to the extent not prohibited by applicable law (which shall include applicable stock exchange rules), regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification or advancement of Expenses; provided, however, that the Indemnitee agrees that it will forthwith (and, in any event, not later than 20 days from the date the Company provides a written demand therefor) repay such Clause 6 Expenses in the event that any allegation of fraud or dishonesty is proved against the Indemnitee in the Proceeding in respect of which the Indemnitee was seeking indemnification or an advance of monies hereunder.

 

7Other Rights to Indemnification

 

7.1

The indemnification and advancement of reasonable Expenses provided by this Deed shall be in addition to any other right to which the Indemnitee previously, now or in the future may be entitled under any provision of the Company's memorandum or articles of association, any other agreement (including any agreement between the Indemnitee and any other Group Company), vote of shareholders of the Company, the Board or Disinterested Directors, provision of law, or otherwise; provided that the Company shall not be obligated under this Deed to make any payment pursuant to this Deed for which payment has been actually made to or on behalf of the Indemnitee by or on behalf of any of the Group Companies under any insurance policy or other indemnity provision, except in respect of any excess beyond the amount paid under any such insurance policy or other indemnity provisions.

 

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7.2In the event of any payment under this Deed, the Group Companies shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute at the request of the Company all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

7.3In the event a Proceeding results in a judgment in Indemnitee’s favor or otherwise is disposed of in a manner that allows the Company to indemnify Indemnitee in connection with such Proceeding under the Constitution as then in effect, the Company will provide such indemnification to Indemnitee and will reimburse any Subsidiary for any indemnification or advancement of expenses previously made by such Subsidiary in connection with such Proceeding.

 

8Attorneys' Fees and Other Expenses to Enforce Deed

 

In the event that the Indemnitee is subject to or intervenes in any Proceeding in which the validity or enforceability of this Deed is at issue or seeks an adjudication or award in arbitration to enforce the Indemnitee's rights under, or to recover damages for breach of, this Deed, the Indemnitee shall, subject to clause 9, be entitled to recover from the Company and shall be indemnified by the Company against, any actual Expenses reasonably incurred by the Indemnitee; provided that in bringing any action for adjudication or award in arbitration to enforce the Indemnitee's rights, the Indemnitee acted in good faith.

 

9Limitations of Indemnification

 

9.1Notwithstanding any other terms of this Deed, no provision of this Deed shall indemnify, the Indemnitee against, or exempt the Indemnitee from, any liability for fraud or dishonesty proved against the Indemnitee.

 

9.2Notwithstanding any other terms of this Deed, no provision of this Deed shall indemnify the Indemnitee against, or exempt the Indemnitee from, any liability to the extent such provision would be void under applicable law, including, without limitation, the provisions of section 235 of the Companies Act (but shall otherwise have effect to the Fullest Extent Permitted By Law in effect at the relevant time). The Parties acknowledge that, at the date of this Deed, section 235 of the Companies Act renders void any provision, whether contained in the Constitution, in a contract with the Company (such as this Deed) or otherwise, purporting to exempt a director or other officer of the Company from, or purporting to indemnify a director or other officer of the Company against, any liability which by virtue of any enactment or rule of law would otherwise attach to the Indemnitee in respect of any negligence, default, breach of duty or breach of trust of which the Indemnitee may be guilty in relation to the Company; provided that, notwithstanding the aforesaid prohibition, the Company may indemnify a director or other officer against any liability incurred by the Indemnitee: (i) in defending proceedings, whether civil or criminal, in which judgment is given in the Indemnitee’s favour or in which the Indemnitee is acquitted; or (ii) in connection with any proceedings or an application for relief from liability under section 233 or 234 of the Companies Act in which relief is granted to the Indemnitee by the High Court of Ireland.

 

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10Liability Insurance

 

To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, the Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any director, officer or Section 16 Officer of the Company.

 

11Duration of Deed

 

This Deed shall apply with respect to the Indemnitee's occupation of any of the position(s) described in clause 3.1 of this Deed prior to the date of this Deed and with respect to all periods of such service after the date of this Deed, even though the Indemnitee may have ceased to occupy such positions(s).

 

12Notice of Proceedings by the Indemnitee

 

12.1The Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding which may be subject to indemnification hereunder; provided that the failure to so notify the Company will not relieve the Company from any liability it may have to the Indemnitee. With respect to any such Proceeding as to which the Indemnitee notifies the Company of the commencement thereof:

 

12.1.1the Company will be entitled to participate therein at its own expense; and

 

12.1.2except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defence thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election so to assume the defence thereof, the Company will not be liable to the Indemnitee under this Deed for any Expenses subsequently incurred by the Indemnitee in connection with the defence thereof other than, subject to clause 9, reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ the Indemnitee's own counsel in such Proceeding, but the fees and Expenses of such counsel incurred after notice from the Company of its assumption of the defence thereof shall be at the expense of the Indemnitee and not subject to indemnification hereunder unless (a) the employment of counsel by the Indemnitee has been authorized by the Company; (b) in the reasonable opinion of counsel to the Indemnitee there is or may be a conflict of interest between the Company and the Indemnitee in the conduct of the defence of such Proceeding; or (c) the Company shall not in fact have employed counsel to assume the defence of such action, in each of which cases, subject to clause 9, the reasonable Expenses of counsel shall be at the expense of the Company.

 

12.2Neither the Company nor the Indemnitee shall settle any claim without the prior written consent of the other (which shall not be unreasonably withheld, conditioned or delayed).

 

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13Notices

 

Any notice required to be given hereunder shall be in writing in the English language and shall be served by sending the same by prepaid recorded post, facsimile, email or by delivering the same by hand to the address of the Party or Parties in question as set out below (or such other address as such Party or Parties shall notify the other Parties of in accordance with this clause 13). Any notice sent by post as provided in this clause 13 shall be deemed to have been served five Business Days after dispatch and any notice sent by facsimile or email as provided in this clause 13 shall be deemed to have been served at the time of dispatch and in proving the service of the same it will be sufficient to prove in the case of a letter that such letter was properly stamped, addressed and placed in the post; and in the case of a facsimile or email that such facsimile or email was duly dispatched to a current facsimile number or email address of the addressee.

 

Company

 

Smurfit WestRock plc

Beech Hill

Clonskeagh

Dublin 4

D04 N2R2

Ireland

Attn: Gillian Carson-Callan

Email: [          ]

 

Indemnitee

 

Name: [              ]

Address: [              ]

 

14Miscellaneous

 

14.1Notwithstanding the expiration or termination of this Deed howsoever arising; such expiration or termination shall not operate to affect such of the provisions hereof as are expressed or intended to remain in full force and effect.

 

14.2If any of the clauses, conditions, covenants or restrictions of this Deed or any deed or document emanating from it shall be found to be void but would be valid if some part thereof were deleted or modified, then such clause, condition, covenant or restriction shall apply with such deletion or modification as may be necessary to make it valid and effective so as to give effect as nearly as possible to the intent manifested by such clause, condition, covenant or restriction.

 

14.3This Deed shall be binding upon the Company and its successors and assigns (including any transferee of all or substantially all of its assets and any successor or resulting company by any Corporate Transaction or otherwise) and shall inure to the benefit of the Indemnitee and the Indemnitee's spouse, assigns, heirs, estate, devises, executors, administrators or other legal representatives; provided, however, that Smurfit WestRock US Holdings Corporation, a wholly owned Subsidiary of the Company, shall be a beneficiary of, and have the right to enforce Section 7.3 hereof.

 

14.4This Deed constitutes the entire agreement between the Parties relating to the matters covered hereby; provided that this Deed shall not supersede any other indemnification agreement between the Indemnitee and the Company or any Group Company (other than the Company) or any indemnification obligation of the Company or any Group Company to the Indemnitee.

 

14.5No provision in this Deed may be amended unless such amendment is agreed to in writing and signed by the Indemnitee and by a duly authorised officer of the Company. No waiver by either Party of any breach by the other Party of any condition or provision of this Deed to be performed by such other Party shall be deemed a waiver of any other condition or provision hereof (whether similar or dissimilar) nor shall such waiver constitute a continuing waiver. Any waiver must be in writing and signed by the Indemnitee or a duly authorised officer of the Company, as the case may be.

 

 11 

 

 

14.6This Deed may be executed in any number of counterparts, including fax and email and by the different Parties hereto on separate counterparts, each of which when executed and delivered shall constitute an original and all such counterparts together constituting but one and the same Deed. This Deed shall become effective and dated on the date stated at the beginning of it. Transmission of an executed counterpart of this Deed or the executed signature page of a counterpart of this Deed by email (in PDF, JPEG or other legible format) shall take effect as delivery of an executed counterpart of this Deed.

 

14.7The terms and conditions of this Deed and the rights of the Parties hereunder shall be governed by and construed in all respects in accordance with the laws of Ireland. The Parties to this Deed hereby irrevocably agree that the courts of Ireland shall have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings (“Deed Proceedings”) which may arise out of or in connection with this Deed and waive any objection to Deed Proceedings in the courts of Ireland on the grounds of venue or on the basis that the Deed Proceedings have been brought in an inconvenient forum; provided that any matters that are referred to arbitration pursuant to clause 4.3 or clause 6.2 shall be exclusively determined by such arbitral proceedings which shall be conducted by a single arbitrator, in the English language and in New York.

 

14.8All payments made by the Company to the Indemnitee hereunder shall be deemed to have been made in the ordinary course of business of the Company, and shall not be deemed to be extraordinary payments.

 

14.9The Company expressly confirms and agrees that it has entered into this Deed and assumed the obligations imposed on it hereby in order to induce the Indemnitee to serve, continue to serve and to take on additional service for or on behalf of the Company, and the Company acknowledges that the Indemnitee is relying upon this Deed in serving, continuing to serve and taking on additional service for or on behalf of the Company.

 

(Remainder of page intentionally left blank)

 

 12 

 

 

IN WITNESS WHEREOF, the undersigned, intending to be bound hereby, have duly executed this Deed as a deed and delivered it on the date first written above.

 

SIGNED AND DELIVERED    
for and on behalf of and as the deed of    
SMURFIT WESTROCK PLC by its lawfully    
appointed attorney [          ] in   [          ]
the presence of:   Lawfully appointed attorney
     
Witness’ signature    
     
Witness’ name    
     
Witness’ occupation    
     
Witness’ address    
     
     
SIGNED AND DELIVERED as a deed    
by [Name]    
in the presence of:   [Name]
     
Witness’ signature    
     
Witness’ name    
     
Witness’ occupation    
     
Witness’ address    

 

[Signature Page – Deed of Indemnification (Parent)]

 

 13 

 

Exhibit 10.2

 

[Date]

 

SMURFIT WESTROCK US HOLDINGS CORPORATION

 

AND

 

[             ]

 

 

 

FORM OF
INDEMNIFICATION AGREEMENT

 

 

 

 

 

 

CONTENTS

 

Page No

 

1 Interpretation 2
     
2 Agreement to Serve 6
     
3 Indemnity of Indemnitee 6
     
4 Determination of Entitlement to Indemnification 7
     
5 Advancement of Expenses 8
     
6 Remedies of the Indemnitee in Cases of Determination Not to Indemnify or to Advance Expenses or Failure to Timely Pay 8
     
7 Other Rights to Indemnification 9
     
8 Attorneys' Fees and Other Expenses to Enforce Agreement 10
     
9 Limitations of Indemnification 10
     
10 Duration of Agreement 10
     
11 Notice of Proceedings by the Indemnitee 11
     
12 Notices 11
     
13 Miscellaneous 12

 

 

 

 

THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is effective as of [date].

 

BETWEEN:

 

(1)SMURFIT WESTROCK US HOLDINGS CORPORATION, a corporation incorporated and organized under the General Corporation Law of the State of Delaware, with its registered office at c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, DE 19801, United States of America (the “Company”);

 

AND

 

(2)[Name] of [address] (the “Indemnitee”).

 

WHEREAS:

 

A.The Company is a wholly owned subsidiary of Smurfit WestRock plc, a public limited company incorporated under the laws of Ireland with registration number 607515 (the “Parent” and, together with its subsidiaries, the “Group”).

 

B.The Board (as defined below) believes that it is in the Group’s best interests for the Group to attract and retain highly skilled and competent directors, secretaries and Section 16 Officers (as defined below) due to direct and indirect benefits the Company derives or expects to derive from the Parent as its wholly owned subsidiary, including access to capital and the ability to compensate the Company’s employees and other service providers with equity awards exercisable for or settled in the Parent’s publicly-traded shares.

 

C.Highly skilled and competent persons are reluctant to serve public companies as directors, secretaries and / or Section 16 Officers unless they are provided with adequate protection through insurance and indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of such companies and uncertainties relating to indemnification increase the difficulty of attracting and retaining such persons.

 

D.The Board has determined that the Group’s inability to attract and retain such persons is detrimental to the best interests of the Company and the Parent, as its sole shareholder, and that the Company should act to assure such persons that there will be increased certainty of such protection.

 

E.The Company desires to ensure that the Group, the Parent and the Parent’s shareholders, as well as the Company as a wholly owned subsidiary of Parent, benefit from the services of highly skilled and competent persons such as the Indemnitee, and has requested that the Indemnitee serve as a [director][secretary][Section 16 Officer] of the Parent.

 

F.It is reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify the Indemnitee to the Fullest Extent Permitted By Law (as defined below) so that the Indemnitee will serve or continue to serve the Parent free from undue concern that the Indemnitee will not be so indemnified.

 

G.Due to restrictions imposed by Irish law, the Constitution (as defined below) of the Parent does not confer indemnification and advancement rights on its directors, secretary and Section 16 Officers as broad as the indemnification and advancement rights that are customarily provided to the directors, secretary and Section 16 Officers of a company organized under the laws of a U.S. state.

 

 1 

 

 

H.In partial consideration of the above premises and of the Indemnitee serving or continuing to serve the Parent, the Company has agreed to enter into this Agreement with the Indemnitee.

 

I.This Agreement is a supplement to and in furtherance of the Constitution and any resolutions adopted pursuant thereto, as well as any rights of the Indemnitee under any directors’ and officers’ liability insurance policy, and is not a substitute therefor, and does not diminish or abrogate any rights of the Indemnitee thereunder.

 

NOW THEREFORE THIS AGREEMENT WITNESSES as follows:

 

1Interpretation

 

1.1In this Agreement, the following words and expressions shall have the following meanings:

 

“Affiliate” has the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act;

 

“Assets” means the assets of any kind owned by the Parent or the Company, including, without limitation, the securities of the Subsidiaries and any of the assets owned by the Subsidiaries;

 

“Beneficial Owner” has the meaning set forth in Rule 13d-3 under the Exchange Act;

 

“Board” means the board of directors of the Company;

 

“Business Day” means a day other than a Saturday, Sunday or public holiday on which clearing banks are generally open for non-automated business in Dublin, Ireland and in Atlanta, Georgia, United States;

 

"Change in Control" means the occurrence of any event set forth in any one of the following paragraphs:

 

(a)any Person is, or becomes, the Beneficial Owner, directly or indirectly, of 30% or more of either: (A) the then issued ordinary shares in the capital of the Parent (the “Outstanding Parent Issued Shares”); or (B) the combined voting power of the then outstanding voting securities of the Parent entitled to vote generally in the election of directors at general meetings of the Parent (the “Outstanding Parent Voting Securities”), excluding any Person who becomes such a Beneficial Owner in connection with a transaction that complies with clauses (A), (B) and (C) of paragraph (c) below;

 

(b)during any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Parent Board (the “Incumbent Board”) cease for any reason to constitute at least a simple majority of the Parent Board; provided, however, that any individual becoming a director of the Parent subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least two-thirds (2/3) of the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or any other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Parent Board;

 

 2 

 

 

(c)the consummation of an acquisition, reorganization, reincorporation, redomestication, merger, amalgamation, consolidation, plan or scheme of arrangement, exchange offer, business combination or similar transaction of the Parent or any of the Subsidiaries or the sale, transfer or other disposition of all or substantially all of Parent’s Assets (any of which a “Corporate Transaction”), unless, following such Corporate Transaction or series of related Corporate Transactions, as the case may be: (A) all of the individuals and Entities who were the Beneficial Owners, respectively, of the Outstanding Parent Issued Shares and Outstanding Parent Voting Securities immediately prior to such Corporate Transaction own or beneficially own, directly or indirectly, more than 50% of, respectively, the Outstanding Parent Issued Shares and the combined voting power of the Outstanding Parent Voting Securities entitled to vote generally in the election of directors (or other governing body), as the case may be, of the Entity resulting from such Corporate Transaction (including, without limitation, an Entity (including any new parent Entity) which as a result of such transaction owns the Parent or all or substantially all of Parent’s Assets either directly or through one or more Entities) in substantially the same proportions as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Parent Issued Shares and the Outstanding Parent Voting Securities, as the case may be; (B) no Person (excluding any Entity resulting from such Corporate Transaction or any employee benefit plan (or related trust) of the Parent or such Entity resulting from such Corporate Transaction) beneficially owns, directly or indirectly, 30% or more of, respectively, the then issued ordinary shares (or outstanding shares of common stock) of the Entity resulting from such Corporate Transaction or the combined voting power of the then outstanding voting securities of such Entity except to the extent that such ownership existed prior to the Corporate Transaction; and (C) at least a simple majority of the members of the board of directors (or other governing body) of the Entity resulting from such Corporate Transaction were members of the Incumbent Board at the time of the approval of such Corporate Transaction;

 

(d)approval or adoption by the Parent Board or the shareholders of the Parent of a plan or proposal which could result directly or indirectly in the liquidation, transfer, sale or other disposal of all or substantially all of Parent’s Assets or the dissolution of the Parent, excluding any transaction that complies with clauses (A), (B) and (C) of paragraph (c) above;

 

(e)any Person (other than a Group Company) (A) becomes the Beneficial Owner, directly or indirectly, of a majority of the outstanding voting securities of the Company or (B) acquires all or substantially all of the Company’s Assets; or

 

(f)the dissolution of the Company;

 

“Company Organizational Documents” means the Certificate of Incorporation of the Company and the Bylaws of the Company, which may be amended from time to time;

 

“Constitution” means the memorandum of association and articles of association of the Parent;

 

“Disinterested Director” means a director of the Company who is not or was not a party to a Proceeding in respect of which indemnification is sought by the Indemnitee;

 

 3 

 

 

“Entity” means any corporation, partnership, association, joint-stock company, limited liability company, trust, unincorporated organization or other business entity;

 

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time;

 

“Expenses” shall mean all costs, expenses, and obligations paid or incurred in connection with investigating, litigating, being a witness in, defending or participating in, or preparing to litigate, defend, be a witness in or participate in any matter that is the subject of a Proceeding, including attorneys', experts', accountants' or other advisors’ fees and court costs and including any premium, security and other costs relating to the posting of any bond or its equivalent;

 

“Fullest Extent Permitted by Law” means the maximum extent authorized or permitted by the Delaware General Corporation Law or other applicable law (which shall include applicable stock exchange rules), as such laws may from time to time be amended to increase the scope of such permitted indemnification;

 

“Group Companies” means the Parent, the Company and each other Subsidiary (wherever incorporated or organised);

 

“Independent Counsel” means a law firm or a member of a law firm that neither is presently nor in the past 5 years has been retained to represent: (i) the Company or any other Group Company or the Indemnitee in any matter material to any such party; or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing the Company or the Indemnitee in an action to determine the Indemnitee's right to indemnification under this Agreement;

 

“Parent Board” means the board of directors of the Parent;

 

“Parent Deed of Indemnification” means that certain Deed of Indemnification between the Parent and the Indemnitee;

 

“Parties” means the parties to this Agreement collectively, and "Party" means any one of them;

 

“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Parent, the Company or any of the other Subsidiaries; (ii) a trustee or other fiduciary holding securities under terms of an employee benefit and compensation plans, agreements, arrangements, programs, policies, practices, contracts or agreement of the Parent, the Company and their respective Affiliates; (iii) an underwriter temporarily holding securities pursuant to an offering by the Company of such securities; or (iv) a corporation or other Entity owned, directly or indirectly, by the shareholders of the Parent in the same proportions as their ownership of issued shares of the Parent;

 

“Proceeding” means any actual, threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any other actual, threatened, pending or completed proceeding, inquiry, hearing or investigation, whether civil, criminal, administrative or investigative and whether formal or informal and whether brought by or in the right of the Parent or the Company or otherwise (including, but not limited to, the investigation, defense, settlement or appeal of any of the forgoing);

 

 4 

 

 

“Section 16 Officer” means a director and / or officer of the Parent subject to Section 16 of the Exchange Act; and

 

“Subsidiary” means any majority-owned subsidiary of the Parent (including the Company) or any majority-owned subsidiary thereof, or any other Entity in which the Parent owns, directly or indirectly, a significant financial interest; provided that the President & Group Chief Executive Officer of the Parent designates such Entity to be a Subsidiary for the purposes of this Agreement.

 

1.2In this Agreement, unless the context otherwise requires or unless otherwise specified:

 

1.2.1any reference to any statute, statutory provision or to any order or regulation shall be construed as a reference to that statute, provision, order or regulation as extended, modified, amended, replaced or re-enacted from time to time (whether before or after the date of this Agreement) and all statutory instruments, regulations and orders from time to time made thereunder or deriving validity therefrom (whether before or after the date of this Agreement);

 

1.2.2words denoting any gender include all genders and words denoting the singular include the plural and vice versa;

 

1.2.3all references to recitals, sections, clauses, paragraphs, schedules and annexes are to recitals in, sections, clauses and paragraphs of and schedules and annexes to this Agreement, unless otherwise specifically stated;

 

1.2.4headings are for convenience only and shall not affect the interpretation of this Agreement;

 

1.2.5general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things, and general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words and any reference to the word “include” or “including” is to be construed without limitation;

 

1.2.6words such as “hereunder”, “hereto”, “hereof” and “herein” and other words commencing with “here” shall unless the context clearly indicates to the contrary refer to the whole of this Agreement and not to any particular section, clause or paragraph hereof;

 

1.2.7any reference to this Agreement, to any other agreement or document or to any specified provision of this Agreement or any other agreement or document is to this Agreement, that agreement or document or that specified provision, in each case as amended from time to time in accordance with the terms of this Agreement or that other agreement or document, as the case may be;

 

1.2.8any reference to a “person” shall be construed as a reference to any individual, firm, company, corporation, body corporate, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing;

 

 5 

 

 

1.2.9any reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established;

 

1.2.10any reference to a Party or other person includes his, her or its successors, personal representatives and permitted assigns;

 

1.2.11any reference to “writing” or any similar expression includes transmission by email or other comparable means of electronic communication; provided, however, that where such notice is served under this Agreement by email or other comparable means of electronic communication, it must clearly and unambiguously state at the beginning of such communication that such communication constitutes a notice for the purpose of this Agreement; and

 

1.2.12if any action or duty to be taken or performed under any of the provisions of this Agreement would fall to be taken or performed on a day which is not a Business Day, such action or duty shall be taken or performed on the Business Day next following such day.

 

1.3The Parties have participated jointly in the negotiating and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favouring or disfavouring either Party by virtue of the authorship of any of the provisions of this Agreement.

 

2Agreement to Serve

 

The Indemnitee is a [director][secretary][Section 16 Officer] of the Parent. This Agreement does not create or otherwise establish any right on the part of the Indemnitee to be and continue to be elected or appointed or employed as a [director][secretary][Section 16 Officer] of the Parent or any other Group Company and does not create an employment contract or other employment arrangement between the Company and the Indemnitee.

 

3Indemnity of Indemnitee

 

3.1Subject to clause 9, the Company shall, to the Fullest Extent Permitted By Law and without prejudice to any other indemnity to which the Indemnitee may otherwise be entitled, indemnify, defend and hold harmless the Indemnitee against all damages, losses, liabilities, judgments, penalties, fines, amounts paid in settlement, and reasonable Expenses if the Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, any Proceeding, in whole or in part by reason of (or arising in whole or in part out of) the fact or assertion that the Indemnitee (i) is, or was, serving as a director, officer, employee, agent, or fiduciary of the Parent, the Company or another Group Company or (ii) is or was serving, at the request of the Company or another Group Company, as a director, officer, employee, agent, or fiduciary of any other company, corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other Entity or enterprise or by reason of anything done or not done by the Indemnitee in any such capacity. The Parties hereto intend that this Agreement shall provide indemnification in excess of that expressly permitted by the Constitution, the Parent Deed of Indemnification or Irish law.

 

 6 

 

 

3.2Subject to clause 9, if the Indemnitee is entitled under any provision of this Agreement to indemnification for some or a portion of Expenses, damages, losses, liabilities, judgments, penalties, fines and amounts paid in settlement, but not the total amount thereof, the Company shall indemnify, defend and hold harmless the Indemnitee for such portion of the Expenses, damages, losses, liabilities, judgments, penalties, fines, amounts paid in settlement and any other amounts that the Indemnitee becomes legally obligated to pay in connection with any Proceeding to which the Indemnitee is entitled.

 

4Determination of Entitlement to Indemnification

 

4.1The Indemnitee shall request indemnification pursuant to this Agreement by notice in writing to the secretary of the Company. The secretary shall, promptly upon receipt of the Indemnitee's request for indemnification, advise in writing the Board or such other person or persons empowered to make the determination as provided in clause 4.2 that the Indemnitee has made such request for indemnification. Subject to clause 9, upon making such request for indemnification, the Indemnitee shall be presumed to be entitled to indemnification hereunder and the Company shall have the burden of proof in the making of any determination contrary to such presumption.

 

4.2Upon written request by the Indemnitee for indemnification pursuant to clause 3.1, and subject to the presumption set forth in clause 4.1, the entitlement of the Indemnitee to indemnification pursuant to the terms of this Agreement shall be determined in the following circumstances and by the following person or persons who, in each instance, shall be empowered to make such determination:

 

4.2.1if a Change in Control shall not have occurred,

 

(a)by the Board, by a majority vote of the Disinterested Directors, even though less than a quorum;

 

(b)by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum;

 

(c)if there are no Disinterested Directors, or if such Disinterested Directors (by majority vote) so direct, or if the Indemnitee so requests, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee; and

 

4.2.2if a Change in Control shall have occurred,

 

(a)by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee; or

 

(b)at the Indemnitee's sole option, the Indemnitee shall have the right to direct that such determination be made in the manner provided in clause 4.2.1.

 

 7 

 

 

4.3For the purposes of clause 4.2.1(b), Independent Counsel shall be selected by the Board and reasonably approved by the Indemnitee and, for the purposes of clause 4.2.2, Independent Counsel shall be reasonably selected by the Indemnitee. Upon failure of the Board to so select such Independent Counsel or upon failure of the Indemnitee to so approve, such Independent Counsel shall be selected by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Such determination of entitlement to indemnification pursuant to clause 4.2, regardless of whether by the Board or Independent Counsel, shall be made not later than 60 days after receipt by the Company of a written request for indemnification. The Indemnitee shall cooperate with the Board or Independent Counsel, as applicable, making such determination, including providing, upon reasonable request, any documentation or information which is reasonably necessary for such determination which is not privileged and which is reasonably available to the Indemnitee. Subject to clause 9, any reasonable Expenses incurred by the Indemnitee in connection with the Indemnitee's request for indemnification hereunder shall be borne by the Company irrespective of the outcome of the determination of the Indemnitee's entitlement to indemnification. If the person or persons making such determination shall determine that the Indemnitee is entitled to indemnification as to part, but not all, of the application for indemnification, such persons may, subject to clause 9, reasonably pro rate such partial indemnification among such claims, issues or matters in respect of which indemnification is requested.

 

5Advancement of Expenses

 

Subject to clause 9, all reasonable Expenses incurred by, and advances of disbursements required of, the Indemnitee in connection with any Proceeding and in connection with the Indemnitee seeking an adjudication or award in arbitration pursuant to this Agreement shall, at the request of the Indemnitee, be paid by the Company in advance of the final disposition of any such Proceeding, adjudication or arbitration as promptly as possible, and in any event within 20 days after the receipt by the Company of a statement or statements from the Indemnitee requesting such advance or advances from time to time. Such statement or statements shall reasonably evidence the Expenses incurred by, or disbursements required of, the Indemnitee in connection therewith. Notwithstanding any determination as to entitlement to indemnification made pursuant to clause 4 or clause 6, the Indemnitee agrees that it will forthwith (and, in any event, not later than 20 days from the date the Company provides a written demand therefor) repay any advance of funds made by the Company pursuant to this clause 5 if it is ultimately determined under applicable law that the Indemnitee is not entitled to be indemnified. The Parties intend that the foregoing constitute the undertaking required pursuant to Section 145(e) of the Delaware General Corporation Law. Subject to clause 9, the Company shall have the burden of proof in any determination under this clause 5. No amounts advanced hereunder shall be deemed an extension of credit by the Company to the Indemnitee. To the Fullest Extent Permitted By Law, advances shall be unsecured and interest free and the Indemnitee’s right to advances under this clause 5 shall in all events continue until final disposition of any Proceeding, including any appeal therein.

 

6Remedies of the Indemnitee in Cases of Determination Not to Indemnify or to Advance Expenses or Failure to Timely Pay

 

6.1In the event that: (a) a determination is made that the Indemnitee is not entitled to indemnification hereunder pursuant to clause 4.2; (b) payment has not been timely made following a determination of entitlement to indemnification pursuant to clause 4; or (c) Expenses or disbursements required of the Indemnitee are not advanced pursuant to clause 5, the Indemnitee shall be entitled to apply to any court of the State of Delaware for a determination of the Indemnitee's entitlement to such indemnification, indemnification payment or advance.

 

6.2Alternatively to clause 6.1, except for an application to be indemnified for any liability arising from a Proceeding by or in the right of the Company for which the Indemnitee shall have been adjudicated liable (which must be brought in the Court of Chancery of the State of Delaware or the court in which such Proceeding was brought), the Indemnitee, at the Indemnitee's sole option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association, such award to be made within 60 days following the Indemnitee's filing of the request for arbitration. The Company shall not oppose the Indemnitee's right to seek any such adjudication or award in arbitration or any other claim.

 

 8 

 

 

6.3A judicial proceeding or arbitration pursuant to this clause 6 shall be made de novo and the Indemnitee shall not be prejudiced by reason of a determination otherwise made hereunder (if so made) that the Indemnitee is not entitled to indemnification. If the court or arbitrator shall determine that the Indemnitee is entitled to any indemnification or advance hereunder, the Company shall pay all reasonable Expenses actually incurred by the Indemnitee in connection with such adjudication or award in arbitration (including, but not limited to, any appellate proceedings) (the "Clause 6 Expenses"), to the extent not prohibited by applicable law (which shall include applicable stock exchange rules), regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification or advancement of Expenses; provided, however, that the Indemnitee agrees that it will forthwith (and, in any event, not later than 20 days from the date the Company provides a written demand therefor) repay such Clause 6 Expenses in the event that any allegation of fraud or dishonesty is proved against the Indemnitee in the Proceeding in respect of which the Indemnitee was seeking indemnification or an advance of monies hereunder.

 

7Other Rights to Indemnification

 

7.1The indemnification and advancement of reasonable Expenses provided by this Agreement shall be in addition to any other right to which the Indemnitee previously, now or in the future may be entitled under any provision of the Company Organizational Documents, any other agreement (including the Parent Deed of Indemnification or any agreement between the Indemnitee and any other Group Company), vote of shareholders of the Company, the Board or Disinterested Directors, provision of law, or otherwise; provided that the Company shall not be obligated under this Agreement to make any payment pursuant to this Agreement for which payment has been actually made to or on behalf of the Indemnitee by or on behalf of any of the Group Companies under any insurance policy or other indemnity provision, except in respect of any excess beyond the amount paid under any such insurance policy or other indemnity provisions. As between the Parent and the Company, the Parent shall be the indemnitor of first resort (i.e., its obligations to the Indemnitee are primary and the obligations of the Company to advance Expenses and to provide indemnification for the same Expenses, damages, losses, liabilities, judgments, penalties, fines, and amounts paid in settlement are secondary). To the extent not satisfied by the Parent in accordance with the Parent Deed of Indemnification within five Business Days of a written request by the Indemnitee for indemnification or advancement, the Company shall be required to advance the full amount of Expenses incurred by the Indemnitee and shall be required to indemnify the Indemnitee for the full amount of damages, losses, liabilities, judgments, penalties, fines, amounts paid in settlement, and reasonable Expenses in settlement as required by (and subject to) the terms of this Agreement, the Company Organizational Documents, or any other agreement between the Company and the Indemnitee, without regard to any rights to indemnification or advancement of Expenses the Indemnitee may have against other Entities (other than the Parent).

 

 9 

 

 

7.2To the Fullest Extent Permitted By Law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever (other than pursuant to the terms hereof), the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for Expenses, damages, losses, liabilities, judgments, penalties, fines and amounts paid in settlement, in connection with any claim, including, without limitation, claims for contribution that may be brought against Indemnitee by directors, officers, employees or agents of the Parent (other than Indemnitee) who may be jointly liable with Indemnitee, relating to an event or occurrence giving rise to indemnification under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Parent and the Company, on one hand, and Indemnitee, on the other hand, as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Parent and the Company (and their respective directors, officers, employees and agents), on one hand, and Indemnitee, on the other hand, in connection with such event(s) and/or transaction(s).

 

7.3In the event of any payment under this Agreement, the Group Companies shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute at the request of the Company all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

8Attorneys' Fees and Other Expenses to Enforce Agreement

 

In the event that the Indemnitee is subject to or intervenes in any Proceeding in which the validity or enforceability of this Agreement is at issue or seeks an adjudication or award in arbitration to enforce the Indemnitee's rights under, or to recover damages for breach of, this Agreement, the Indemnitee, shall, subject to clause 9, be entitled to recover from the Company and shall be indemnified by the Company against, any actual Expenses reasonably incurred by the Indemnitee; provided that in bringing any action for adjudication or award in arbitration to enforce the Indemnitee's rights, the Indemnitee acted in good faith.

 

9Limitations of Indemnification

 

9.1Notwithstanding any other terms of this Agreement, no provision of this Agreement shall indemnify, the Indemnitee against, or exempt the Indemnitee from, any liability for bad faith, fraud or dishonesty proved against the Indemnitee.

 

9.2Notwithstanding any other terms of this Agreement, no provision of this Agreement shall indemnify the Indemnitee against, or exempt the Indemnitee from, any liability arising in connection with a Proceeding by or in the right of the Company if the Indemnitee is adjudged liable to the Company unless and only to the extent that the Court of Chancery of the State of Delaware (or the court in which such Proceeding was brought) determines that despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses that such court shall deem proper.

 

10Duration of Agreement

 

This Agreement shall apply with respect to the Indemnitee's occupation of any of the position(s) described in clause 3.1 of this Agreement prior to the date of this Agreement and with respect to all periods of such service after the date of this Agreement, even though the Indemnitee may have ceased to occupy such positions(s).

 

 10 

 

 

11Notice of Proceedings by the Indemnitee

 

11.1The Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding which may be subject to indemnification hereunder; provided that the failure to so notify the Company will not relieve the Company from any liability it may have to the Indemnitee. With respect to any such Proceeding as to which the Indemnitee notifies the Company of the commencement thereof:

 

11.1.1the Company will be entitled to participate therein at its own expense; and

 

11.1.2except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Company to the Indemnitee of its election so to assume the defense thereof, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than, subject to clause 9, reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ the Indemnitee's own counsel in such Proceeding, but the fees and Expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of the Indemnitee and not subject to indemnification hereunder unless (a) the employment of counsel by the Indemnitee has been authorized by the Company; (b) in the reasonable opinion of counsel to the Indemnitee there is or may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of such Proceeding; or (c) the Company shall not in fact have employed counsel to assume the defense of such action, in each of which cases, subject to clause 9, the reasonable Expenses of counsel shall be at the expense of the Company.

 

11.2Neither the Company nor the Indemnitee shall settle any claim without the prior written consent of the other (which shall not be unreasonably withheld, conditioned or delayed).

 

12Notices

 

Any notice required to be given hereunder shall be in writing in the English language and shall be served by sending the same by prepaid recorded post, facsimile, email or by delivering the same by hand to the address of the Party or Parties in question as set out below (or such other address as such Party or Parties shall notify the other Parties of in accordance with this clause 13). Any notice sent by post as provided in this clause 13 shall be deemed to have been served five Business Days after dispatch and any notice sent by facsimile or email as provided in this clause 13 shall be deemed to have been served at the time of dispatch and in proving the service of the same it will be sufficient to prove in the case of a letter that such letter was properly stamped, addressed and placed in the post; and in the case of a facsimile or email that such facsimile or email was duly dispatched to a current facsimile number or email address of the addressee.

 

Company

 

c/o Smurfit WestRock plc

Beech Hill

Clonskeagh

Dublin 4

D04 N2R2

Ireland

Attn: Gillian Carson-Callan

Email: [          ]

 

Indemnitee

 

Name: [            ]

Address: [            ]

 

 11 

 

 

13Miscellaneous

 

13.1Notwithstanding the expiration or termination of this Agreement howsoever arising; such expiration or termination shall not operate to affect such of the provisions hereof as are expressed or intended to remain in full force and effect.

 

13.2If any of the clauses, conditions, covenants or restrictions of this Agreement or any agreement or document emanating from it shall be found to be void but would be valid if some part thereof were deleted or modified, then such clause, condition, covenant or restriction shall apply with such deletion or modification as may be necessary to make it valid and effective so as to give effect as nearly as possible to the intent manifested by such clause, condition, covenant or restriction.

 

13.3This Agreement shall be binding upon the Company and its successors and assigns (including any transferee of all or substantially all of its assets and any successor or resulting company by any Corporate Transaction or otherwise) and shall inure to the benefit of the Indemnitee and the Indemnitee's spouse, assigns, heirs, estate, devises, executors, administrators or other legal representatives.

 

13.4This Agreement constitutes the entire agreement between the Parties relating to the matters covered hereby; provided that this Agreement shall not supersede any other indemnification agreement between the Indemnitee and the Company or any Group Company (other than the Company) or any indemnification obligation of the Company or any Group Company to the Indemnitee.

 

13.5No provision in this Agreement may be amended unless such amendment is agreed to in writing and signed by the Indemnitee and by a duly authorized officer of the Company. No waiver by either Party of any breach by the other Party of any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of any other condition or provision hereof (whether similar or dissimilar) nor shall such waiver constitute a continuing waiver. Any waiver must be in writing and signed by the Indemnitee or a duly authorized officer of the Company, as the case may be.

 

13.6This Agreement may be executed in any number of counterparts, including fax and email and by the different Parties hereto on separate counterparts, each of which when executed and delivered shall constitute an original and all such counterparts together constituting but one and the same Agreement. This Agreement shall become effective and dated on the date stated at the beginning of it. Transmission of an executed counterpart of this Agreement or the executed signature page of a counterpart of this Agreement by email (in PDF, JPEG or other legible format) shall take effect as delivery of an executed counterpart of this Agreement.

 

13.7The terms and conditions of this Agreement and the rights of the Parties hereunder shall be governed by and construed in all respects in accordance with the laws of the State of Delaware. The Parties to this Agreement hereby irrevocably agree that the courts of Delaware shall have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings (“Agreement Proceedings”) which may arise out of or in connection with this Agreement and waive any objection to Agreement Proceedings in the courts of Delaware on the grounds of venue or on the basis that the Agreement Proceedings have been brought in an inconvenient forum; provided that any matters that are referred to arbitration pursuant to clause 4.3 or clause 6.2 shall be exclusively determined by such arbitral proceedings which shall be conducted by a single arbitrator, in the English language and in New York.

 

 12 

 

 

13.8All payments made by the Company to the Indemnitee hereunder shall be deemed to have been made in the ordinary course of business of the Company and shall not be deemed to be extraordinary payments.

 

13.9The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce the Indemnitee to serve, continue to serve and to take on additional service for or on behalf of the Company, and the Company acknowledges that the Indemnitee is relying upon this Agreement in serving, continuing to serve and taking on additional service for or on behalf of the Company.

 

(Remainder of page intentionally left blank)

 

 13 

 

 

IN WITNESS WHEREOF, the undersigned, intending to be bound hereby, have duly executed this Agreement and delivered it on the date first written above.

 

SMURFIT WESTROCK US HOLDINGS CORPORATION

 

By:    
Name:    
Title:    
   
   
SIGNED AND DELIVERED  
by [Name]  
   
   
(Signature)  

 

[Signature Page – Indemnification Agreement (Subsidiary)]

 

 14 

 

 

Exhibit 10.3 

 

execution version

 

MULTICURRENCY TERM AND REVOLVING FACILITIES AGREEMENT

 

28 JUNE 2024

 

$5,100,000,000

 

for

 

SMURFIT KAPPA INVESTMENTS LIMITED

 

as Obligors’ Agent

 

with

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

as Agent  

 

 

 

Allen Overy Shearman Sterling LLP

 

 

 

 

Contents

 

Clause   Page
     
1. Definitions and Interpretation 1
2. The Facilities 36
3. Purpose 40
4. Conditions of Utilisation 40
5. Utilisation – Facility A and Facility B Loans 43
6. Utilisation – Swingline Loans 46
7. Optional Currencies 49
8. Ancillary Facilities 49
9. Repayment 55
10.  Prepayment and Cancellation 58
11.  Rate Switch 62
12. Interest 64
13. Interest Periods 70
14. Changes to the Calculation of Interest 71
15. Fees 74
16. Tax Gross Up and Indemnities 75
17. Increased Costs 90
18. Other Indemnities 93
19. Mitigation by the Lenders 94
20. Costs and Expenses 94
21. Guarantee and Indemnity 95
22. Representations 100
23. Information Undertakings 104
24. General Undertakings 110
25. Sustainability 117
26. Events of Default 118
27. Changes to the Lenders 123
28. Changes to the Obligors 129
29. The Agent, the Coordinators and the Sustainability Coordinators 131
30. Conduct of Business by the Finance Parties 139
31. Sharing among the Finance Parties 139
32. Payment Mechanics 141
33. Set-Off 145
34. Notices 145
35. Calculations and Certificates 147
36. Partial Invalidity 148
37. Remedies and Waivers 148
38. Amendments and Waivers 148
39. Confidential Information 156
40. Confidentiality of Funding Rates 160
41. Bail-In 161
42. Counterparts 162
43. Governing Law 163
44. Enforcement 163

 

 

 

 

SchedulePage

 

1. The Original Parties   165
  Part 1 The Original Obligors 165
  Part 2 The Original Lenders 166
  Part 3 The Original Swingline Lenders 168
  Part 4 The Bookrunners and Mandated Lead Arrangers 170
  Part 5 The Mandated Lead Arrangers 171
2. Conditions Precedent   172
  Part 1 Conditions Precedent to Initial Utilisation 172
  Part 2 Conditions Precedent Required to be Delivered by an Additional Obligor 174
3. Requests   176
  Part 1 Utilisation Request: Facility A Loans and Facility B Loans 176
  Part 2 Utilisation Request: Swingline Loans 177
  Part 3 Selection Notice 178
  Part 4 Debt Pushdown Notice 179
4. Form of Transfer Certificate   180
5. Form of Assignment Agreement   183
6. Form of Accession Letter   186
7. Form of Resignation Letter   187
8. Form of Margin Certificate   188
9. Extension Request   189
  Part 1 Form of Extension Request 189
  Part 2 Form of Extension Request Acknowledgement 190
10. Timetables   191
11. Guarantee Principles   192
12. Form of Increase Confirmation   194
13. Form of Ancillary Lender Accession Letter   198
14. Reference Rate Terms   199
  Part 1 US Dollars – Term Rate Loans 199
  Part 2 US Dollars – Compounded Rate Loans 202
  Part 3 Euro 206
  Part 4 Sterling 209
  Part 5 Swiss Francs 212
  Part 6 Japanese Yen 215
  Part 7 Swedish Kronor 218
  Part 8 Canadian Dollars 220
15. Daily Non-Cumulative Compounded RFR Rate   223
16. Cumulative Compounded RFR Rate   225
17. Form of Substitute Affiliate Lender Designation Notice   226
18. Form of Sustainability Compliance Certificate   229
19. SLL Commencement Form   231

 

Signatory

 

Signatories

 

Annex

 

1.KPI233

 

 

 

 

THIS AGREEMENT is dated 28 June 2024

 

and is made BETWEEN:

 

(1)SMURFIT KAPPA GROUP PLC, a public limited company incorporated under the laws of Ireland with company number 433527 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland;

 

(2)SMURFIT KAPPA INVESTMENTS LIMITED, a private limited company incorporated under the laws of Ireland with company number 380620 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland as the Obligors' Agent;

 

(3)THE ENTITIES listed in Part 1 of Schedule 1 (The Original Parties) as original borrowers (the Original Borrowers);

 

(4)THE ENTITIES listed in Part 1 of Schedule 1 (The Original Parties) as original guarantors (the Original Guarantors);

 

(5)NATIONAL WESTMINSTER BANK PLC and WELLS FARGO BANK, N.A., LONDON BRANCH as joint coordinators (the Coordinators);

 

(6)THE FINANCIAL INSTITUTIONS listed in Part 2 and Part 3 of Schedule 1 (The Original Parties) as lenders (the Original Lenders);

 

(7)THE FINANCIAL INSTITUTIONS listed as such in Part 4 of Schedule 1 (The Original Parties) as bookrunners and mandated lead arrangers;

 

(8)THE FINANCIAL INSTITUTIONS listed as such in Part 5 of Schedule 1 (The Original Parties) as mandated lead arrangers; and

 

(9)WELLS FARGO BANK, NATIONAL ASSOCIATION as agent of the other Finance Parties (the Agent).

 

IT IS AGREED as follows:

 

1.Definitions and Interpretation

 

1.1Definitions

 

In this Agreement:

 

Acceptable Bank means:

 

(a)a bank or financial institution which has a long-term unsecured debt rating and/or long-term cash rating of BBB or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or Baa2 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency;

 

(b)any Finance Party or an Affiliate of a Finance Party; or

 

(c)any other bank or financial institution approved by the Agent (acting reasonably).

 

Acceptance Date has the meaning given to that term in Clause 12.6 (Margin adjustments - sustainability).

 

1

 

 

Accession Letter means a document substantially in the form set out in Schedule 6 (Form of Accession Letter).

 

Accounting Principles means:

 

(a)from the date of this Agreement to (but excluding) the Closing Date, IFRS;

 

(b)from the Closing Date but subject to paragraph (c) below, US GAAP; and

 

(c)subsequently, either:

 

(i)US GAAP; or

 

(ii)IFRS,

 

as selected from time to time by the Obligors' Agent or the Parent by notice to the Agent,

 

in each case as in effect from time to time and interpreted in line with the Group's accounting policies as applied in the audited financial statements.

 

Additional Borrower means a company which becomes an Additional Borrower in accordance with Clause 28 (Changes to the Obligors).

 

Additional Business Day means any day specified as such in the applicable Reference Rate Terms.

 

Additional Guarantor means a company which becomes an Additional Guarantor in accordance with Clause 28 (Changes to the Obligors).

 

Additional Obligor means an Additional Borrower or an Additional Guarantor.

 

Affiliate means:

 

(a)subject to paragraph (b) below, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company; but

 

(b)in relation to National Westminster Bank Plc, the term "Affiliate" shall not include:

 

(i)the UK government or any member or instrumentality of it, including His Majesty's Treasury and UK Financial Investments Limited (or any directors, officers, employees or entities of it); or

 

(ii)any persons or entities controlled by or under common control with the UK government or any member or instrumentality of it (including His Majesty's Treasury and UK Financial Investments Limited) and which are not part of NatWest Group plc and its subsidiaries or subsidiary undertakings.

 

Agent's Spot Rate of Exchange means the rate provided (either by publication or otherwise provided or made available to the Agent) by Thomson Reuters Corp. (or equivalent service chosen by the Agent in its sole discretion) as the spot rate for the purchase of the relevant currency with the Base Currency on a particular day.

 

Alternative Term Rate means any rate specified as such in the applicable Reference Rate Terms.

 

2

 

 

Alternative Term Rate CAS means any rate which is either:

 

(a)specified as such in the applicable Reference Rate Terms; or

 

(b)if a methodology is specified in the applicable Reference Rate Terms, as determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with that methodology.

 

Ancillary Commencement Date means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall be a Business Day within the Availability Period for the Facility.

 

Ancillary Commitment means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 8 (Ancillary Facilities), to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility.

 

Ancillary Document means each document relating to or evidencing the terms of an Ancillary Facility.

 

Ancillary Facility means any ancillary facility made available by an Ancillary Lender in accordance with Clause 8 (Ancillary Facilities).

 

Ancillary Lender means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 8 (Ancillary Facilities).

 

Ancillary Lender Accession Letter means a document substantially in the form set out in Schedule 6 (Form of Accession Letter) or any other form as may be agreed between the relevant Ancillary Lender, the Agent and the Obligors' Agent.

 

Ancillary Outstandings means, at any time, in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the equivalents (as calculated by that Ancillary Lender) in the Base Currency of the following amounts outstanding under that Ancillary Facility:

 

(a)the principal amount under each overdraft facility and on-demand short term loan facility (net of any Available Credit Balance);

 

(b)the face amount of each guarantee, bond and letter of credit under that Ancillary Facility; and

 

(c)the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,

 

in each case as determined by such Ancillary Lender, acting reasonably in accordance with its normal banking practice and in accordance with the relevant Ancillary Document.

 

Annual Financial Statements has the meaning given to it in Clause 23.1 (Financial statements).

 

Anti-Money Laundering Laws means:

 

(a)the Executive Order;

 

(b)the Bank Secrecy Act (31 USC. §§ 5311 et seq.);

 

(c)the Money Laundering Control Act of 1986 (18 USC. §§ 1956 et seq.);

 

3

 

 

(d)the USA Patriot Act;

 

(e)any similar law enacted in the United States after the date of this Agreement; and

 

(f)any other applicable anti-money laundering law or regulation.

 

Assignment Agreement means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.

 

Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration, in each case, required by law or regulation.

 

Availability Period means:

 

(a)in relation to Facility A, the period from and including the date of this Agreement to and including the earlier of:

 

(i)10 Business Days after the Closing Date; and

 

(ii)10 Business Days after 12 March 2025; and

 

(b)in relation to Facility B, the period from and including the date of this Agreement to and including the date falling one Month before the Termination Date.

 

Available Commitment means (without limiting Clause 6.5 (Relationship with Facility B)) in relation to a Facility, a Lender's Commitment under that Facility minus:

 

(a)the Base Currency Amount of its participation in any outstanding Loans under that Facility;

 

(b)the Base Currency Amount of the aggregate of its (and its Affiliate's) Ancillary Commitments; and

 

(c)in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date and the Base Currency Amount of its (and its Affiliate's) Ancillary Commitment in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date other than:

 

(i)that Lender's participation in any Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date; and

 

(ii)that Lender's (and its Affiliate's) Ancillary Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date.

 

Available Credit Balance means, in relation to an Ancillary Facility, credit balances on any account of any Borrower of that Ancillary Facility with the Ancillary Lender making available that Ancillary Facility to the extent that those credit balances are freely available to be set off by that Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility.

 

Available Facility means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.

 

4

 

 

Available Swingline Commitment of a Swingline Lender means (without limiting Clause 6.5 (Relationship with Facility B)) that Lender's Swingline Commitment minus:

 

(a)the amount of its participation in any outstanding Swingline Loans; and

 

(b)in relation to any proposed Utilisation under the Swingline Facility, the amount of its participation in any Swingline Loans that are due to be made under the Swingline Facility on or before the proposed Utilisation Date,

 

other than that Lender's participation in any Swingline Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

 

Available Swingline Facility means the aggregate for the time being of each Swingline Lender's Available Swingline Commitment.

 

Bankruptcy Code means the body of federal bankruptcy law, embodied in Title 11 of the United States Code (11 U.S.C. ss 101 to 1532).

 

Bank Levy means:

 

(a)the UK bank levy as set out in the Finance Act 2011;

 

(b)the Dutch bank levy as set out in the Dutch Bank Levy Act (Wet bankenbelasting); and

 

(c)any substantially similar bank levy in any other jurisdiction which is in force or has been formally announced as proposed (though not yet entered into law) as at the date of this Agreement and in relation to which a Lender would reasonably be able to quantify the relevant Increased Costs (as defined in Clause 17.1 (Increased Costs)) or loss or liability for or on account of Tax (as applicable) as at the date of this Agreement.

 

Base Currency means US Dollars.

 

Base Currency Amount means:

 

(a)in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan or (if the amount requested is not denominated in the Base Currency), that amount converted into the Base Currency at the Agent's Spot Rate of Exchange as reflected in the Agent's loan accounting systems on the date on which, and at the time at which, the Agent processes that Utilisation Request; and

 

(b)in relation to an Ancillary Commitment, the amount specified as such in the notice delivered to the Agent pursuant to Clause 8.2 (Availability) or (if the amount specified is not denominated in the Base Currency) that amount converted into the Base Currency at the Agent's Spot Rate of Exchange as reflected in the Agent's loan accounting systems on the date on which, and at the time at which, the Agent processes notice of the Ancillary Commitment under Clause 8.2(b) (Availability) or Clause 8.12 (Existing Ancillary Facilities),

 

adjusted to reflect any repayment, prepayment, consolidation or division of a Loan or (as the case may be) cancellation or reduction of an Ancillary Facility.

 

Baseline means, in relation to a KPI, the baseline performance of the Group set out in a SLL Commencement Form.

 

Baseline CAS means, in relation to a Compounded Rate Loan in a Compounded Rate Currency, any rate which is either:

 

(a)specified as such in the applicable Reference Rate Terms; or

 

5

 

 

(b)if a methodology is specified in the applicable Reference Rate Terms, as determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with that methodology.

 

Blocking Regulation means:

 

(a)Council Regulation (EC) No 2271/1996 of 22 November 1996 (as amended) and/or any applicable national law or regulation relating to it; and

 

(b)Council Regulation (EC) No 2271/1996 of 22 November 1996 (as amended) as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018.

 

Borrower means:

 

(a)an Original Borrower or an Additional Borrower, unless it has ceased to be a Borrower in accordance with Clause 28 (Changes to the Obligors); and

 

(b)in respect of an Ancillary Facility only, any Affiliate of a Borrower that becomes a borrower of that Ancillary Facility with the approval of the relevant Ancillary Lender pursuant to Clause 8.9 (Affiliates of Borrowers),

 

and where a reference to a Borrower is stated to be in relation to a particular Facility (or equivalent language), this means that the Borrower is specified to be a Borrower of that Facility in Part 1 of Schedule 1 (The Original Parties) or in the Accession Letter by which it became a Borrower.

 

Break Costs means any amount specified as such in the applicable Reference Rate Terms.

 

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London and New York and:

 

(a)in relation to any date for payment or purchase of a currency other than euro, the principal financial centre of the country of that currency;

 

(b)in relation to any date for payment or purchase of euro which is a TARGET Day; and

 

(c)in relation to:

 

(i)the fixing of an interest rate in relation to a Loan;

 

(ii)any date for payment or purchase of an amount relating to a Loan; or

 

(iii)the determination of the first day or the last day of an Interest Period for a Loan, or otherwise in relation to the determination of the length of such an Interest Period,

 

which is an Additional Business Day relating to that Loan or Unpaid Sum.

 

A Business Day is not a Swingline Business Day unless it falls within the definition of Swingline Business Day.

 

Calculation Methodology means, in relation to a KPI, the calculation methodology applicable to that KPI as set out in a SLL Commencement Form.

 

Central Bank Rate has the meaning given to that term in the applicable Reference Rate Terms.

 

6

 

 

Central Bank Rate Adjustment has the meaning given to that term in the applicable Reference Rate Terms.

 

Certifying Officer means any of the finance director, treasury officer, company secretary or any other director of the Parent or the Obligors' Agent.

 

Change of Control means any person or group of persons acting in concert acquires (either directly or indirectly) 30% or more of the voting shares of the Parent and such person or group of persons is the largest direct or indirect holder of voting shares of the Parent, but a Permitted Holdco Reorganisation shall not constitute a Change of Control. The Combination shall not constitute a Change of Control.

 

Closing Date means the date on which the Combination is consummated.

 

Closing Date Guarantor means each of the following entities:

 

(a)Smurfit WestRock US Holdings Corporation (incorporated in Delaware, US with registered number 7665333);

 

(b)Smurfit WestRock;

 

(c)WestRock Company;

 

(d)WRKCo Inc. (incorporated in Delaware, US with registered number 5688407);

 

(e)WestRock RKT, LLC (incorporated in Georgia, US with registered number J518706); and

 

(f)WestRock MWV, LLC (incorporated in Delaware, US with registered number 3429632).

 

Combination means:

 

(a)the acquisition of Smurfit Kappa Group by Smurfit WestRock by means of a scheme of arrangement under section 450 of the Irish Companies Act; and

 

(b)the merger of Sun Merger Sub, LLC with and into WestRock Company.

 

Commitment means a Facility A Commitment, a Facility B Commitment or a Swingline Commitment.

 

Compounded Rate Currency means any currency which is not a Term Rate Currency, including, on the date of this Agreement:

 

(a)Sterling;

 

(b)Swiss Francs;

 

(c)Canadian Dollars; and

 

(d)Japanese Yen.

 

Compounded Rate Interest Payment means the aggregate amount of interest that:

 

(a)is, or is scheduled to become, payable under any Finance Document; and

 

(b)relates to a Compounded Rate Loan.

 

7

 

 

Compounded Rate Loan means any Loan or, if applicable, Unpaid Sum which is not a Term Rate Loan.

 

Compounded Reference Rate means, in relation to any RFR Banking Day during the Interest Period of a Compounded Rate Loan, the percentage rate per annum which is the aggregate of:

 

(a)the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and

 

(b)the applicable Baseline CAS, Fallback CAS and/or Rate Switch CAS (if any).

 

Compounding Methodology Supplement means, in relation to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which:

 

(a)is agreed in writing by the Obligors’ Agent, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders);

 

(b)specifies a calculation methodology for that rate; and

 

(c)has been made available to the Obligors’ Agent and each Finance Party.

 

Confidential Information means all information relating to the Parent, the Obligors’ Agent, any Obligor, the Group, the WestRock Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

 

(a)any member of the Group, the WestRock Group or any of its advisers; or

 

(b)another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

 

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

(i)information that:

 

(A)is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39 (Confidential Information); or

 

(B)is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

(C)is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

 

(ii)any Funding Rate.

 

Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Obligors’ Agent and the Agent which, in each case, is addressed to or capable of being relied upon by one or more Obligors without requiring their signature by virtue of reliance on the Third Parties Act and may not be materially amended without an Obligor’s consent.

 

8

 

 

Consolidated Total Assets means, at any time, the total amount of all assets of the Group (calculated in accordance with the Accounting Principles) calculated at that time by reference to the most recent Financial Statements delivered under this Agreement.

 

CTA means the Corporation Tax Act 2009.

 

Cumulative Compounded RFR Rate means, in relation to an Interest Period for a Compounded Rate Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 16 (Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.

 

Daily Non-Cumulative Compounded RFR Rate means, in relation to any RFR Banking Day during an Interest Period for a Compounded Rate Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 15 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.

 

Daily Rate means the rate specified as such in the applicable Reference Rate Terms.

 

Debt Pushdown Borrower means either:

 

(a)WRKCo Inc.; or

 

(b)a member of the Group selected by the Parent, provided that such member of the Group shall not be listed as Debt Pushdown Borrower in a Debt Pushdown Notice until the Agent confirms, on behalf of all Lenders, that the relevant “know your customer” checks have been completed in respect of that member of the Group.

 

Debt Pushdown Notice means a notice in substantially the form set out in Part 4 of Schedule 3 (Requests).

 

Declared Default means an Event of Default which is continuing and in respect of which the Agent has served notice on the Obligors’ Agent under Clause 26.12 (Acceleration).

 

Declassification Date means the date on which the Agent (acting on the instructions of the Majority Facility B Lenders) exercises its right to declassify the Facility B as “sustainability-linked” in accordance with paragraph (a) of Clause 25.1 (Declassification Event).

 

Declassification Event means:

 

(a)a failure by the relevant Parties to agree the amendments referred to in paragraph (b) of Clause 38.3 (Sustainability Amendment Event) (in accordance with the terms of that Clause); or

 

(b)a failure by the Parent (or the Obligors’ Agent) to deliver a Sustainability Compliance Certificate in accordance with Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report) for two consecutive SLL Reference Periods.

 

Default means an Event of Default or any event or circumstance specified in Clause 26 (Events of Default) which would (with the expiry of a grace period, the giving of notice, or any combination of them) be an Event of Default.

 

9

 

 

Defaulting Lender means any Lender:

 

(a)which has failed to make its participation in a Loan available (or has notified the Agent or the Obligors’ Agent (which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.5 (Lenders' participation)

 

(b)which has otherwise rescinded or repudiated a Finance Document; or

 

(c)with respect to which an Insolvency Event has occurred and is continuing,

 

unless, in the case of paragraph (a) above:

 

(i)its failure to pay is caused by:

 

(A)administrative or technical error; or

 

(B)a Disruption Event; and

 

payment is made within three Business Days of its due date; or

 

(ii)the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

 

Designated Gross Amount means, if applicable, the amount notified by the Obligors’ Agent to the Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Gross Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.

 

Designated Net Amount means, if applicable, the amount notified by the Obligors’ Agent to the Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Net Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.

 

Designated Website has the meaning given to it in Clause 23.7 (Use of websites).

 

Designation Notice has the meaning given to it in Clause 27.8 (Lender Affiliates and Facility Office).

 

Disruption Event means either or both of:

 

(a)a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

(b)the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

(i)from performing its payment obligations under the Finance Documents; or

 

(ii)from communicating with other Parties in accordance with the terms of the Finance Documents,

 

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

10

 

 

Eligible Institution means any Lender or other bank, financial institution, trust, fund or other entity which, in each case, is not a member of the Group.

 

Environmental Approval means any Authorisation required by Environmental Law.

 

Environmental Law means any law or regulation concerning:

 

(a)the protection of health and safety;

 

(b)the environment; or

 

(c)any emission or substance which is capable of causing harm to any living organism or the environment.

 

ERISA means the Employee Retirement Income Security Act of 1974.

 

ERISA Affiliate means an entity which is under common control with any Obligor within the meaning of section 4001(a)(14) of ERISA, or is a member of a group which includes any Obligor and which is treated as a single employer under subsection (b) or (c) of Section 414 of the IRS Code.

 

Event of Default means any event or circumstance specified as such in Clause 26 (Events of Default).

 

Executive Order means Executive Order No. 13224 on Terrorist Financing: Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism issued 23 September 2001, as amended by Executive Order 13268.

 

Existing Ancillary Facility means any ancillary facility made available to the Group or the WestRock Group prior to the Closing Date by a Lender or any of its Affiliates which, prior to the Closing Date, is designated in writing as an Existing Ancillary Facility by a Borrower or the Obligors’ Agent in accordance with Clause 8.12 (Existing Ancillary Facilities).

 

Existing Rabobank Securitisation means the receivables securitisation transaction evidenced by:

 

(a)the Eighth Amended and Restated Credit and Security Agreement, dated as of July 22, 2016, among WestRock Financial, Inc., as borrower, WestRock Converting Company, as servicer, Coöperative Rabobank U.A., New York Branch, as administrative agent for the lenders and as funding agent for the lenders and the co-agents, and the lenders and the co-agents from time to time party thereto; and

 

(b)the Sixth Amended and Restated Receivables Sale Agreement, dated as of July 22, 2016, among the originators party thereto and WestRock Financial, Inc., as buyer.

 

Extension Request means a notice substantially in the form set out in Part 1 (Form of Extension Request) of Schedule 9 (Extension Request).

 

Extension Request Acknowledgment means an acknowledgment substantially in the form set out in Part 2 (Form of Extension Request Acknowledgement) of Schedule 9 (Extension Request).

 

Facility means Facility A, Facility B or the Swingline Facility.

 

Facility A means the term loan facility made available under this Agreement as described in Clause 2 (The Facilities).

 

11

 

 

Facility A Commitment means:

 

(a)in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Facility A Commitment” in Part 2 of Schedule 1 (The Original Parties) and the amount of any other Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase after cancellation); and

 

(b)in relation to any other Lender, the amount in the Base Currency of any Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase after cancellation),

 

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

Facility A Loan means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.

 

Facility A Repayment Date means each date on which a Borrower must make a repayment in respect of a Facility A Loan pursuant to Clause 9.1 (Repayment of Facility A Loans).

 

Facility B means the revolving loan facility made available under this Agreement as described in Clause 2 (The Facilities).

 

Facility B Commitment means:

 

(a)in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Facility B Commitment” in Part 2 of Schedule 1 (The Original Parties) and the amount of any other Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase after cancellation); and

 

(b)in relation to any other Lender, the amount in the Base Currency of any Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase after cancellation),

 

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

Facility B Lenders means each Lender which has a Facility B Commitment.

 

Facility B Loan means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.

 

Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

 

Fallback CAS means, in relation to any Loan in a Term Rate Currency which becomes a “Compounded Rate Loan” for its then current Interest Period pursuant to Clause 14.1 (Interest calculation if no Primary Term Rate), any rate which is either:

 

(a)specified as such in the applicable Reference Rate Terms; or

 

(b)if a methodology is specified in the applicable Reference Rate Terms, as determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with that methodology.

 

Fallback Interest Period means, in relation to a Term Rate Loan, the period specified as such in the applicable Reference Rate Terms.

 

12

 

 

FATCA means:

 

(a)sections 1471 to 1474 of the IRS Code or any associated regulations or other official guidance; or

 

(b)any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

(c)any agreement pursuant to the implementation of any treaty, law, regulation or other official guidance referred to in paragraphs (a) and (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

 

FATCA Application Date means:

 

(a)in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the IRS Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

 

(b)in relation to a “passthru payment” described in section 1471(d)(7) of the IRS Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

 

FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.

 

Federal Funds Rate means in relation to any day, the rate per annum equal to:

 

(a)the rate on overnight federal funds transactions calculated by the Federal Reserve Bank of New York as the federal funds effective rate as published for that day (or, if that day is not a Swingline Business Day, for the immediately preceding Swingline Business Day) by the Federal Reserve Bank of New York; or

 

(b)if a rate is not so published for any day which is a Swingline Business Day, the average of the quotations for that day on overnight federal funds transactions received by the Agent from three depository institutions of recognised standing selected by the Agent,

 

and if, in either case, that rate is less than zero, the Federal Funds Rate shall be deemed to be zero.

 

Fee Letter means:

 

(a)any letter or letters between the Agent and any Obligor (or the Obligors’ Agent) setting out any of the fees referred to in Clause 15 (Fees); and

 

(b)any document setting out fees payable to a Finance Party referred to in Clause 15.6 (Interest, commission and fees on Ancillary Facilities) of this Agreement or under any other Finance Document.

 

Finance Document means this Agreement, any Ancillary Document, any Fee Letter, any Accession Letter, any Resignation Letter, any Margin Certificate, any Extension Request, any Reference Rate Supplement, any Compounding Methodology Supplement, any Debt Pushdown Notice and any other document designated as such by the Agent and the Obligors’ Agent.

 

13

 

 

Finance Party means the Agent, the Coordinators, a Lender or any Ancillary Lender.

 

Financial Indebtedness means any indebtedness for or in respect of:

 

(a)moneys borrowed and debit balances at financial institutions;

 

(b)any acceptance credit or bill discounting facility;

 

(c)any bond, note, debenture, loan stock or other similar instrument;

 

(d)any preference share by its terms required to be redeemed prior to the Termination Date;

 

(e)any finance or capital lease or hire purchase, conditional sale or other arrangement required by the Accounting Principles to be capitalised for accounting purposes;

 

(f)receivables sold, pledged or discounted (otherwise than on a Non-Recourse basis or receivables sold, pledged or discounted pursuant to a Permitted Receivables Securitisation);

 

(g)the acquisition cost of any asset or service to the extent payable before or after its acquisition or possession by the party liable where the advance or deferred payment (as the case may be) would be required to be accounted for as a liability under the Accounting Principles and:

 

(i)is arranged primarily as a method of raising finance or financing the acquisition or construction of that asset or the acquisition of that service (other than trade credit on customary commercial terms); or

 

(ii)involves a period of more than six months before or after (as the case may be) the date of acquisition or supply;

 

(h)any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and, except for non-payment of an amount, the then mark to market value of the derivative transaction will be used to calculate its amount) to the extent required to be accounted for as liabilities under the Accounting Principles;

 

(i)any other transaction (including any forward sale or purchase agreement) which is required to be accounted for as a borrowing under the Accounting Principles;

 

(j)any counter-indemnity obligation in respect of any guarantee, indemnity, bond, documentary credit or other instrument issued by a bank or financial institution; or

 

(k)any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs (a) to (j) above,

 

but excluding any indebtedness owed by one member of the Group to another member of the Group.

 

Financial Statements means Annual Financial Statements and/or Interim Financial Statements.

 

Financial Year means the annual accounting period of the Group ending on or about 31 December in each year.

 

First Extension Termination Date has the meaning given to it in Clause 9.4 (Extension of Termination Date).

 

Funding Rate means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 14.4 (Cost of funds).

 

14

 

 

Gross Outstandings means, in relation to a Multi-account Overdraft, the Ancillary Outstandings of that Multi-account Overdraft but calculated on the basis that the words “(net of any Available Credit Balance)” in paragraph (a) of the definition of Ancillary Outstandings were deleted.

 

Group means the Parent and its Subsidiaries for the time being, other than any Securitisation SPVs.

 

Guarantee Principles means the principles set out in Schedule 11 (Guarantee Principles).

 

Guarantor means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 28 (Changes to the Obligors).

 

Historic Primary Term Rate means, in relation to any Term Rate Loan, the most recent applicable Primary Term Rate for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than seven days before the Quotation Day.

 

Historic RFR means, in relation to a currency and an RFR Banking Day for that currency, the most recent RFR for a day which is no more than five RFR Banking Days before that RFR Banking Day.

 

Holding Company means, in relation to a person, any other person in respect of which it is a Subsidiary.

 

IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

Impaired Agent means the Agent at any time when:

 

(a)it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

(b)the Agent otherwise rescinds or repudiates a Finance Document;

 

(c)(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of Defaulting Lender; or

 

(d)an Insolvency Event has occurred and is continuing with respect to the Agent;

 

unless, in the case of paragraph (a) above:

 

(i)its failure to pay is caused by:

 

(A)administrative or technical error; or

 

(B)a Disruption Event,

 

and payment is made within three Business Days of its due date; or

 

(ii)the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

 

Increase Confirmation means a confirmation substantially in the form set out in Schedule 12 (Form of Increase Confirmation) or any other form agreed between the Agent and the Obligors’ Agent.

 

Increase Lender has the meaning given to that term in Clause 2.2 (Increase after cancellation).

 

Initial Termination Date means the date falling five years after the date of this Agreement.

 

15

 

 

Insolvency Event in relation to a Finance Party means that the Finance Party:

 

(a)is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

(b)becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

(c)makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

(d)institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

(e)has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

(i)results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

(ii)is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

(f)has exercised in respect of it one or more of the stabilisation powers pursuant to part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to part 3 of the Banking Act 2009;

 

(g)has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

(h)seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, examiner or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

 

(i)has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

(j)causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or

 

(k)takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

 

16

 

 

Interest Period means, in relation to a Loan, each period determined in accordance with Clause 13 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 12.7 (Default interest).

 

Interim Financial Statements has the meaning given to it in Clause 23.1 (Financial statements).

 

Interpolated Alternative Term Rate means, in relation to any Term Rate Loan (rounded to the same number of decimal places as the two relevant Alternative Term Rates), the rate which results from interpolating on a linear basis between:

 

(a)either:

 

(i)the applicable Alternative Term Rate (as of the Quotation Time) for the longest period (for which that Alternative Term Rate is available) which is less than the Interest Period of that Loan; or

 

(ii)if no such Alternative Term Rate is available for a period which is less than the Interest Period of that Loan, the applicable Overnight Rate (if any) for the Overnight Reference Day; and

 

(b)the applicable Alternative Term Rate (as of the Quotation Time) for the shortest period (for which that Alternative Term Rate is available) which exceeds the Interest Period of that Loan.

 

Interpolated Historic Primary Term Rate means, in relation to any Term Rate Loan, the rate (rounded to the same number of decimal places as the two relevant Primary Term Rates) which results from interpolating on a linear basis between:

 

(a)either:

 

(i)the most recent applicable Primary Term Rate (as of a day which is not more than seven days before the Quotation Day) for the longest period (for which that Primary Term Rate is available) which is less than the Interest Period of that Loan; or

 

(ii)if no such Primary Term Rate is available for a period which is less than the Interest Period of that Loan, the most recent applicable Overnight Rate (if any) for a day which is:

 

(A)no more than seven days before the Quotation Day; and

 

(B)no later than the Overnight Reference Day; and

 

(b)the most recent applicable Primary Term Rate (as of a day which is not more than seven days before the Quotation Day) for the shortest period (for which that Primary Term Rate is available) which exceeds the Interest Period of that Loan.

 

Interpolated Primary Term Rate means, in relation to any Term Rate Loan, the rate (rounded to the same number of decimal places as the two relevant Primary Term Rates) which results from interpolating on a linear basis between:

 

(a)either:

 

(i)the applicable Primary Term Rate (as of the Quotation Time) for the longest period (for which that Alternative Term Rate is available) which is less than the Interest Period of that Loan; or

 

17

 

 

(ii)if no such Primary Term Rate is available for a period which is less than the Interest Period of that Loan, the applicable Overnight Rate (if any) for the Overnight Reference Day; and

 

(b)the applicable Primary Term Rate (as of the Quotation Time) for the shortest period (for which that Alternative Term Rate is available) which exceeds the Interest Period of that Loan.

 

Irish Companies Act means the Companies Act 2014 of Ireland (as amended).

 

IRS Code means the US Internal Revenue Code of 1986.

 

IRS means the Internal Revenue Service of the U.S. Department of the Treasury.

 

ITA means the Income Tax Act 2007.

 

KPIs means the sustainability key performance indicators (KPIs) specified in a SLL Commencement Form.

 

Legal Opinion means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 28 (Changes to the Obligors).

 

Legal Reservations means:

 

(a)the principle that equitable remedies may be granted or refused at the discretion of a court, the principles of reasonableness and fairness, the limitation of enforcement by laws relating to bankruptcy, insolvency, reorganisation, court schemes, moratoria, administration, examinership and other laws generally affecting the rights of creditors and similar principles or limitations under the laws of any applicable jurisdiction, regardless of whether considered in a proceeding in equity or at law;

 

(b)the time barring of claims under applicable statutes of limitation, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty (other than Irish stamp duty) may be void and defences of set-off or counterclaim and similar principles or limitations under the laws of any applicable jurisdiction;

 

(c)conflicts of laws principles relating to a contracting party’s substantial relationship with the subject jurisdiction, or whether there is a reasonable basis for the choice of law, and with exceptions for applicability of federal law, procedural matters and for matters which may be judged to violate local legal public policy;

 

(d)local principles relating to finality of judgments, non-exclusivity and possibilities of appeal;

 

(e)similar principles, rights and defences under the laws of any applicable jurisdiction to the extent that they are relevant and applicable; or

 

(f)any other matters which are set out as qualifications or reservations (however described) as to matters of law of general application in the Legal Opinions.

 

Lender means:

 

(a)any Original Lender; and

 

(b)any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender” in accordance with Clause 2.2 (Increase after cancellation) or Clause 27 (Changes to the Lenders),

 

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which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

 

LMA means the Loan Market Association.

 

Loan means a Facility A Loan, a Facility B Loan or a Swingline Loan.

 

Lookback Period means the number of days specified as such in the applicable Reference Rate Terms.

 

Majority Lenders means a Lender or Lenders whose Commitments (other than Swingline Commitments) aggregate more than 66⅔% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔% of the Total Commitments immediately prior to the reduction).

 

Majority Facility B Lenders means a Lender or Lenders whose Facility B Commitments aggregate more than 66⅔% of the Total Facility B Commitments.

 

Margin means the rate per annum calculated in accordance with Clause 12.5 (Margin adjustments – rating) and Clause 12.6 (Margin adjustments - sustainability).

 

Margin Certificate means a certificate substantially in the form set out in Schedule 8 (Form of Margin Certificate).

 

Market Disruption Rate means the rate (if any) specified as such in the applicable Reference Rate Terms.

 

Material Adverse Effect means:

 

(a)a material adverse effect on the business, operations or financial condition of the Group taken as a whole;

 

(b)a material adverse effect on the ability of the Obligors (taken together) to perform any of their payment obligations under any of the Finance Documents; or

 

(c)the guarantee given by any Guarantor not being effective or enforceable in accordance with its terms in a manner or to an extent which is materially prejudicial to the financial interests of the Lenders.

 

Material Company means, at any time:

 

(a)an Obligor; or

 

(b)a Subsidiary of the Parent whose unconsolidated earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) represents 5% or more of Adjusted EBITDA reported in the latest Annual Financial Statements.

 

Compliance with the conditions set out in paragraph (b) above shall be determined by the Parent or the Obligors’ Agent on an annual basis by reference to latest Annual Financial Statements and the most recent annual financial results of that Subsidiary.

 

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Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

(a)other than where paragraph (b) below applies:

 

(i)(subject to paragraph (iii) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

(ii)if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

(iii)if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end; and

 

(b)in relation to an Interest Period (or any other period for the accrual of commission or fees in a currency), subject to adjustment in accordance with the rules specified as Business Day Conventions in the applicable Reference Rate Terms.

 

These rules will only apply to the last month of any period.

 

Multi-account Overdraft means an Ancillary Facility which is an overdraft facility comprising more than one account.

 

Net Outstandings means, in relation to a Multi-account Overdraft, the Ancillary Outstandings of that Multi-account Overdraft.

 

New Lender has the meaning given to that term in Clause 27 (Changes to the Lenders).

 

Non-Recourse means, in relation to a Permitted Receivables Securitisation, no recourse to the Group other than recourse that is customary for trade receivables facilities in the relevant jurisdiction.

 

Obligor means a Borrower or a Guarantor.

 

Obligors’ Agent means:

 

(a)Smurfit Kappa Investments Limited; or

 

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(b)any other person which becomes the Obligors’ Agent in accordance with paragraphs (c) and (d) of Clause 2.4 (Obligors' Agent) or as a result of being the surviving entity following a Permitted Reorganisation involving a person which was the Obligors’ Agent immediately prior to such Permitted Reorganisation (provided that such surviving entity remains an Obligor).

 

Optional Currency means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies).

 

Original Obligor means an Original Borrower or an Original Guarantor.

 

Original Swingline Lender means an Original Lender listed in Part 3 of Schedule 1 (The Original Parties) as a Swingline Lender.

 

Overall Facility B Commitment of a Lender means:

 

(a)its Facility B Commitment; or

 

(b)in the case of a Swingline Lender which does not have a Facility B Commitment, the Facility B Commitment of its Affiliate which is a Facility B Lender.

 

Overnight Rate means the rate (if any) specified as such in the applicable Reference Rate Terms.

 

Overnight Reference Day means the day (if any) specified as such in the applicable Reference Rate Terms.

 

Parent means:

 

(a)from the date of this Agreement (except as provided below), Smurfit Kappa Group;

 

(b)from the date on which Smurfit WestRock becomes a party to this Agreement, Smurfit WestRock; and

 

(c)thereafter, from the date of any Permitted Holdco Reorganisation, the relevant Replacement Parent (as defined in the definition of Permitted Holdco Reorganisation).

 

Participating Member State means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

Party means a party to this Agreement.

 

PBGC means the United States Pension Benefit Guaranty Corporation.

 

Permitted Gross Outstandings means, in relation to a Multi-account Overdraft, any amount, not exceeding its Designated Gross Amount, which is the amount of the Gross Outstandings of that Multi-account Overdraft.

 

Permitted Guarantee means:

 

(a)the endorsement of negotiable instruments in the ordinary course of trade;

 

(b)any indemnity given in the ordinary course of the documentation of an acquisition transaction which indemnity is in a customary form and subject to customary limitations;

 

(c)any guarantee comprising a netting or set-off arrangement entered into by a member of the Group in the ordinary course of its banking arrangements for the purposes of netting debit and credit balances of that member of the Group or of other members of the Group;

 

(d)guarantees in existence on the Closing Date (or any replacement or renewals thereof or any guarantee given by the same members of the Group in respect of any permitted refinancing of the obligations guaranteed by such existing guarantee provided that any limit on the amount guaranteed is not subsequently increased (other than as a result of the capitalisation of interest));

 

(e)customary indemnities to purchasers under sale agreements for any disposal that is permitted under Clause 24.4 (Disposals);

 

(f)guarantees, indemnities and performance or similar bonds guaranteeing performance by a member of the Group under any contract entered into in the ordinary course of business or lease of premises entered into in the ordinary course of business;

 

21

 

 

(g)guarantees in respect of the Financial Indebtedness of members of the Group which are not Guarantors where such Financial Indebtedness is not prohibited by the terms of this Agreement;

 

(h)guarantees given by a member of a Group in favour of another member of the Group;

 

(i)any joint and several liability (hoofdelijke aansprakelijkheid), including any netting or set-off, as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes as a result of the existence of a VAT group under section 15 of the VAT Act or any analogous arrangement in any other jurisdiction, in each case, of which any Obligor is or has been a member;

 

(j)guarantees given to a landlord of a member of the Group in relation to lease agreements entered into in the ordinary course of business including:

 

(i)a guarantee or performance bond given by a member of a Group for the obligations of another member of such Group under such agreements; or

 

(ii)a guarantee given by a member of a Group in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or other instrument issued by a bank or financial institution (on normal commercial terms) to support the obligations of a member of such Group under such agreements;

 

(k)guarantees given with the consent of the Agent (acting on the instructions of the Majority Lenders);

 

(l)any guarantees granted pursuant to or in connection with a Permitted Receivables Securitisation; and

 

(m)any guarantees given pursuant to section 357 of the Irish Companies Act.

 

Permitted Holdco Reorganisation means:

 

(a)the Combination; or

 

(b)any other transaction pursuant to which the Parent at such time (the Existing Parent) becomes a direct or indirect wholly-owned subsidiary of another person, and such other person (the Replacement Parent) is designated by the Obligors’ Agent in writing to the Agent as such provided that:

 

(i)the beneficial owners of the voting stock of the Replacement Parent immediately following that transaction are substantially the same as the holders of the voting stock of the Existing Parent immediately prior to that transaction and such that no Change of Control has occurred; and

 

(ii)the Replacement Parent is (or becomes as soon as reasonably practicable and in any event within five Business Days of being designated as the Replacement Parent) a Guarantor.

 

A Permitted Holdco Reorganisation may take place at any time and there shall be no limit to the number of Permitted Holdco Reorganisations during the term of this Agreement.

 

Permitted Receivables Securitisation means a financing of receivables on a Non-Recourse basis by a member or members of the Group (including the Existing Rabobank Securitisation).

 

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Permitted Reorganisation means:

 

(a)an amalgamation, merger, demerger, consolidation, reconstruction, solvent winding up, solvent liquidation or other reorganisation of a member of the Group where:

 

(i)all of the business and assets of that member of the Group remain within the Group unless otherwise not prohibited by this Agreement;

 

(ii)if that member of the Group was an Obligor immediately prior to such reorganisation being implemented, any surviving entity of, or any entity resulting from, any such reorganisation is liable, subject to the Guarantee Principles, for the obligations of that Obligor; and

 

(iii)in the case of a Borrower, the surviving entity is located in a jurisdiction that is permitted for Borrowers under this Agreement; and

 

(b)any other reorganisation of one or more members of the Group approved by the Agent (acting on the instructions of the Majority Lenders).

 

Plan means any employee benefit plan (as defined in section 3(3) of ERISA) which is covered by ERISA and with respect to which any Obligor or any ERISA Affiliate is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

Pre-Approved Borrower means WRKCo Inc. (incorporated in Delaware, US with registered number 5688407).

 

Pre-Approved Currency means euro, Sterling, Swedish Kronor, Canadian Dollars, Japanese Yen and Swiss Francs.

 

Pre-Approved Jurisdiction means, in respect of Facility B, any province of Canada, Ireland, the Netherlands, any jurisdiction within the United Kingdom, and the states of Delaware and Georgia in the United States.

 

Primary Term Rate means the rate specified as such in the applicable Reference Rate Terms.

 

Prohibited Payment means any bribe, rebate, payoff, influence payment, kickback or other payment or gift of money or anything of value (including meals or entertainment) to any officer, employee or ceremonial office holder of any government or instrumentality thereof, any political party or supra-national organisation (such as the United Nations), any political candidate, any royal family member or any other person who is connected or associated personally with any of the foregoing that is prohibited under any applicable law or regulation.

 

Quotation Day means the day specified as such in the applicable Reference Rate Terms.

 

Quotation Time means the relevant time (if any) specified as such in the applicable Reference Rate Terms.

 

Quoted Tenor means, in relation to a Primary Term Rate or an Alternative Term Rate, any period for which (at the date of this Agreement) that rate is customarily published.

 

Rate Switch CAS means, in relation to any Loan or Unpaid Sum in a Rate Switch Currency which is or becomes a “Compounded Rate Loan” pursuant to Clause 11 (Rate Switch), any rate which is either:

 

(a)specified as such in the applicable Reference Rate Terms; or

 

23

 

 

(b)if a methodology is specified in the applicable Reference Rate Terms, as determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with that methodology.

 

Rating means the long term corporate credit rating of the Parent (or, as the case may be, any Affiliate of the Parent given such a rating).

 

Rating Agency means each of Moody’s Investors Service Limited, Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies Inc. and Fitch Ratings Limited.

 

Reference Rate Supplement means, in relation to any currency, a document which:

 

(a)is agreed in writing by the Obligors’ Agent, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders);

 

(b)specifies for that currency the relevant terms which are expressed in this Agreement to be determined by reference to Reference Rate Terms;

 

(c)specifies whether that currency is a Compounded Rate Currency or a Term Rate Currency; and

 

(d)has been made available to the Obligors’ Agent and each Finance Party.

 

Reference Rate Terms means, in relation to:

 

(a)a currency;

 

(b)a Loan or an Unpaid Sum in that currency;

 

(c)an Interest Period for that Loan or Unpaid Sum (or other period for the accrual of commission or fees in a currency); or

 

(d)any term of this Agreement relating to the determination of a rate of interest in relation to such a Loan or Unpaid Sum,

 

the terms set out for that currency, and (where such terms are set out for different categories of Loan, Unpaid Sum or accrual of commission or fees in that currency) for the category of that Loan, Unpaid Sum or accrual, in Schedule 14 (Reference Rate Terms) or in any Reference Rate Supplement.

 

Regulation T, U or X means Regulation T, U or X, respectively, of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

 

Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

 

Relevant Market means the market specified as such in the applicable Reference Rate Terms.

 

Repayment Instalment means each payment made pursuant to Clause 9.1 (Repayment of Facility A Loans).

 

Repeating Representations means each of the representations set out in Clause 22.1 (Status), Clause 22.2 (Binding obligations), Clause 22.3 (Non-conflict with other obligations), Clause 22.4 (Power and authority), Clause 22.5 (Validity and admissibility in evidence), Clause 22.6 (Governing law and enforcement), paragraph (a) of Clause 22.9 (No default), Clause 22.10 (Financial statements) and Clause 22.12 (Anti-corruption) to Clause 22.14 (Pari passu ranking) (inclusive).

 

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Reportable Event means any of the events set out in Section 4043(c) of ERISA.

 

Reporting Day means the day (if any) specified as such in the applicable Reference Rate Terms.

 

Reporting Time means the relevant time (if any) specified as such in the applicable Reference Rate Terms.

 

Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

 

Resignation Letter means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).

 

Restricted Party means a person that is listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on the Specially Designated Nationals and Blocked Persons list maintained by the US Department of the Treasury Office of Foreign Assets Control, the Consolidated List of Financial Sanctions Targets maintained by His Majesty's Treasury, or any similar list maintained by, or public announcement of sanctions designation made by, any Sanctions Authority.

 

RFR means the rate specified as such in the applicable Reference Rate Terms.

 

RFR Banking Day means any day specified as such in the applicable Reference Rate Terms.

 

Rollover Loan means one or more Facility B Loans:

 

(a)made or to be made on the same day that a maturing Facility B Loan is due to be repaid;

 

(b)the aggregate amount of which is equal to or less than the amount of the maturing Facility B Loan;

 

(c)in the same currency as the maturing Facility B Loan (unless arising as a result of the operation of Clause 7.2 (Unavailability of a currency)); and

 

(d)made or to be made to the same Borrower for the purpose of refinancing that maturing Facility B Loan.

 

Sanctions means any Sanctions Laws and Anti-Money Laundering Laws.

 

Sanctions Authorities means:

 

(a)the United States;

 

(b)the United Nations;

 

(c)the European Union;

 

(d)the United Kingdom;

 

(e)Canada; or

 

(f)the respective governmental and official institutions and agencies of any of the foregoing, including, without limitation, the US Department of the Treasury Office of Foreign Assets Control, the United States Department of State, His Majesty's Treasury and Global Affairs Canada.

 

25

 

 

Sanctions Laws means:

 

(a)the Executive Order;

 

(b)the International Emergency Economic Powers Act (50 USC. §§ 1701 et seq.);

 

(c)the Trading with the Enemy Act (50 USC. App. §§ 1 et seq.);

 

(d)the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 or the Iran Sanctions Act;

 

(e)any other law or regulation promulgated from time to time and administered by the US Department of the Treasury Office of Foreign Assets Control, or the US State Department or the US Department of Commerce, or any similar law enacted in the United States after the date of this Agreement; or

 

(f)any other trade, economic or financial sanctions laws, regulations, embargos, rules or restrictive measures administered, enacted or enforced by any Sanctions Authority including (without limitation) those relating to restrictive measures against specific countries or territories, including (without limitation) Donetsk, Luhansk, Crimea, Cuba, Iran, Syria, Sudan, Burma (Myanmar), North Korea and Libya.

 

Securitisation SPV means:

 

(a)WestRock Financial, Inc., incorporated in Delaware, US, with registered number 3309598; and

 

(b)any other company, fund or other entity (other than the Parent) established for the purposes of a Permitted Receivables Securitisation which the Obligors' Agent designates as such by notice to the Agent at a time when (and the Obligors' Agent confirms that) no Event of Default is continuing,

 

in each case provided that, and for so long as, it has no assets or operations other than in connection with one or more Permitted Receivables Securitisations.

 

Security means a mortgage, charge, pledge, hypothec, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

 

Selection Notice means a notice substantially in the form set out in Part 3 of Schedule 3 (Requests) given in accordance with Clause 13 (Interest Periods) in relation to Facility A.

 

Separate Loan has the meaning given to that term in paragraph (c) of Clause 9.2 (Repayment of Facility B Loans).

 

SLL Commencement Date means the date on which the KPIs and SPTs are approved by the Majority Facility B Lenders under paragraphs (d) or (e) of Clause 12.6 (Margin adjustments - sustainability).

 

SLL Commencement Form means a document substantially in the form set out in Schedule 19 (SLL Commencement Form).

 

SLL Facility means Facility B on and from the SLL Commencement Date.

 

26

 

 

SLL Longstop Date means the second anniversary of the Closing Date, being the date on or before which (subject to paragraph (e) of Clause 12.6 (Margin adjustments - sustainability)) the SLL Commencement Form is required to be delivered to the Agent by the Obligors' Agent or the Parent.

 

SLL Reference Period means each Financial Year of the Parent.

 

SLLP means the Sustainability-Linked Loan Principles published by the LMA from time to time.

 

Smurfit Kappa 2019 RCF means the €1,350,000,000 revolving facility agreement dated 28 January 2019 between, among others, Smurfit Kappa Investments Limited as the Obligors' Agent and National Westminster Bank plc as Agent.

 

Smurfit Kappa Group means Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland with company number 433527 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland.

 

Smurfit WestRock means Smurfit WestRock Limited (a private limited company) intended to be re-registered and renamed as Smurfit WestRock plc (a public limited company), incorporated under the laws of Ireland with company number 607515 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland.

 

Specified Time means a day or time determined in accordance with Schedule 10 (Timetables).

 

SPT means, in relation to each KPI and each SLL Reference Period, each sustainability performance target as specified in a SLL Commencement Form.

 

Subsidiary means, in relation to a company, corporation or partnership, another company, corporation or partnership (in each case other than a Securitisation SPV):

 

(a)which is controlled, directly or indirectly, by the first-mentioned company, corporation or partnership;

 

(b)more than half the issued share capital of which is beneficially owned, directly or indirectly, by the first-mentioned company, corporation or partnership; or

 

(c)which is a Subsidiary of another Subsidiary of the first-mentioned company, corporation or partnership,

 

and, for these purposes, a company, corporation or partnership shall be treated as being controlled by another if that other company, corporation or partnership is able to direct its affairs generally and/or to control the composition of a majority of its board of directors or equivalent body.

 

Substitute Affiliate Lender has the meaning given to it in paragraph (a)(ii) of Clause 27.8 (Lender Affiliates and Facility Office).

 

Sustainability Amendment Event means:

 

(a)the:

 

(i)sale, lease, transfer or other disposal of an asset;

 

(ii)acquisition of an asset, business or undertaking (or, in each case, any interest in any of them) by any member of the Group; or

 

27

 

 

(iii)entry into of any amalgamation, demerger, merger, consolidation or corporate restructuring by any member of the Group; or

 

(b)the introduction of or a change in a law or regulation which means that any KPI, SPT or Calculation Methodology is no longer relevant, appropriate and/or ambitious or that it can no longer be calculated,

 

which, in each case, could reasonably be expected to affect any KPI, SPT, Calculation Methodology or any other Sustainability Provision (in the reasonable opinion of the Parent or the Obligors' Agent).

 

Sustainability Auditor means an independent professional services firm, environmental consultancy firm or ratings agency which is regularly engaged in the application and monitoring of ESG standards and ESG calculation methodologies, and which is not a member of the Group, as may be appointed from time to time by the Obligors' Agent or the Parent.

 

Sustainability Breach means:

 

(a)an Obligor does not comply with Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report), provided that no Sustainability Breach will occur under this paragraph (a) if the failure to comply is capable of remedy and is remedied within 40 Business Days of the earlier of (i) the Agent giving notice to the Parent, the Obligors’ Agent or the relevant Obligor, and (ii) the Parent, the Obligors’ Agent or an Obligor becoming aware of the failure to comply; or

 

(b)the representation made by an Obligor pursuant to Clause 22.19 (Sustainability Information) is or proves to have been incorrect or misleading when made or deemed to be made and, if the non-compliance or circumstances giving rise to the misrepresentation are capable of remedy, it is not remedied within 40 Business Days of the earlier of (i) the Agent giving notice to the Parent, the Obligors’ Agent or the relevant Obligor, and (ii) the Parent, the Obligors’ Agent or an Obligor becoming aware of the misrepresentation.

 

Sustainability Compliance Certificate means a certificate substantially in the form set out in Schedule 18 (Form of Sustainability Compliance Certificate).

 

Sustainability Compliance Certificate Delay has the meaning given to that term in Clause 23.4 (Sustainability Compliance Certificate Inaccuracy or Delay).

 

Sustainability Compliance Certificate Inaccuracy has the meaning given to that term in Clause 23.4 (Sustainability Compliance Certificate Inaccuracy or Delay).

 

Sustainability Coordinator means such Facility B Lender(s) (or their respective Affiliates) as may be appointed by the Obligors' Agent from time to time with the agreement of those Facility B Lender(s).

 

Sustainability Information means all written material factual information which has been provided by or on behalf of a member of the Group to a Finance Party and/or to the Sustainability Coordinator(s) solely in connection with, and to the extent it relates to, any Sustainability Compliance Certificate, any Sustainability Report, any Verification Report, a KPI, a SPT, a Calculation Methodology or a Baseline.

 

Sustainability Margin Adjustment has the meaning given to that term in Clause 12.6 (Margin adjustments - sustainability).

 

Sustainability Margin Adjustment Date has the meaning given to that term in Clause 12.6 (Margin adjustments - sustainability).

 

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Sustainability Provisions means each of Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report), Clause 23.4 (Sustainability Compliance Certificate Inaccuracy or Delay), Clause 25.2 (Sustainability Publicity), Clause 25.3 (SLL Commencement Date), Clause 38.3 (Sustainability Amendment Event) and any other provision in the Finance Documents relating to Sustainability Information, KPIs, SPTs or Calculation Methodology.

 

Sustainability Report has the meaning given to that term in Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report).

 

Swingline Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in New York.

 

Swingline Commitment means:

 

(a)in relation to an Original Swingline Lender, the amount in US Dollars set opposite its name under the heading "Swingline Commitment" in Part 3 of Schedule 1 (The Original Parties) and the amount of any other Swingline Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase after cancellation); and

 

(b)in relation to any other Swingline Lender, the amount of any Swingline Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase after cancellation),

 

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

Swingline Facility means the US Dollar Swingline Loan facility made available under this Agreement as described in Clause 2 (The Facilities).

 

Swingline Lender means:

 

(a)an Original Swingline Lender; or

 

(b)any other person which has become a Party as a "Lender" in respect of a Swingline Commitment or a participation in a Swingline Loan in accordance with Clause 2.2 (Increase after cancellation) or Clause 27 (Changes to the Lenders),

 

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

 

Swingline Loan means a loan made or to be made under the Swingline Facility or the principal amount outstanding for the time being of that loan.

 

T2 means the real time gross settlement system operated by the Eurosystem, or any successor system.

 

Takeover Code means the City Code on Takeovers and Mergers issued by the Panel on Takeovers and Mergers.

 

TARGET Day means any day on which T2 is open for the settlement of payments in euro.

 

Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

 

Term Rate Currency means:

 

(a)US Dollars;

 

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(b)euro;

 

(c)Swedish Kronor; and

 

(d)any other currency specified as such in a Reference Rate Supplement relating to that currency,

 

to the extent, in any case, not specified otherwise in a subsequent Reference Rate Supplement.

 

Term Rate Loan means any Loan or, if applicable, Unpaid Sum in a Term Rate Currency to the extent that it is not, or has not become, either: a "Compounded Rate Loan" for its then current Interest Period pursuant to Clause 14.1 (Interest calculation if no Primary Term Rate); or a "Compounded Rate Loan" pursuant to Clause 11 (Rate Switch).

 

Term Reference Rate means, in relation to a Term Rate Loan:

 

(a)the applicable Primary Term Rate as of the Quotation Time for a period equal in length to the Interest Period of that Loan; or

 

(b)as otherwise determined pursuant to Clause 14.1 (Interest calculation if no Primary Term Rate),

 

and if, in either case, that rate is less than zero, the Term Reference Rate shall be deemed to be zero.

 

Termination Date means:

 

(a)in respect of Facility A, the date falling five years after the date of this Agreement; and

 

(b)in respect of Facility B and the Swingline Facility, subject to Clause 9.4 (Extension of Termination Date), the Initial Termination Date.

 

Total Commitments means the aggregate of the Total Facility A Commitments and the Total Facility B Commitments, being $5,100,000,000 at the date of this Agreement.

 

Total Facility A Commitments means the aggregate of the Facility A Commitments, being $600,000,000 at the date of this Agreement.

 

Total Facility B Commitments means the aggregate of the Facility B Commitments, being $4,500,000,000 at the date of this Agreement.

 

Total Swingline Commitments means the aggregate of the Swingline Commitments, being $500,000,000 at the date of this Agreement.

 

Transaction means:

 

(a)the Combination;

 

(b)the raising of Financial Indebtedness and repayment of existing Financial Indebtedness contemplated by this Agreement; and

 

(c)any steps relating to the matters referred to in paragraphs (a) and (b) above.

 

Transfer Certificate means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Obligors' Agent.

 

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Transfer Date means, in relation to an assignment or a transfer, the later of:

 

(a)the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

 

(b)the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

 

UK means the United Kingdom.

 

Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.

 

US and United States means the United States of America, any state of it and/or the District of Columbia.

 

US GAAP means generally accepted accounting principles in the US from time to time.

 

US Tax Obligor means:

 

(a)a Borrower which is resident for tax purposes in the US; or

 

(b)an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

 

Utilisation means a utilisation of a Facility.

 

Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made.

 

Utilisation Request means:

 

(a)in respect of a Loan under Facility A or Facility B, a notice substantially in the form set out in Part 1 of Schedule 3 (Requests); and

 

(b)in respect of a Loan under the Swingline Facility, a notice substantially in the form set out in Part 2 of Schedule 3 (Requests).

 

VAT means:

 

(a)any value added tax imposed by the VAT Act;

 

(b)any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

(c)any other tax of a similar nature, whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.

 

VAT Act means the Value-Added Tax Consolidation Act 2010 of Ireland.

 

Verification Report has the meaning given to that term in Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report).

 

WestRock Company means WestRock Company, incorporated in Delaware, US with registered number 6727858.

 

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WestRock Farm Credit System Credit Agreement means the $600,000,000 credit agreement dated 7 July 2022 between, among others, WestRock Southeast LLC, the lenders party thereto and CoBank, ACB.

 

WestRock Group means WestRock Company and its Subsidiaries for the time being.

 

WestRock Rabobank Credit Agreement means the €700,000,000 credit agreement dated 7 July 2022 between, among others, WRKCo Inc., WestRock Company, WRK Luxembourg S.à.r.l., Multi Packaging Solutions Limited, the lenders party thereto and Coöperatieve Rabobank U.A., New York Branch.

 

WestRock Wells Fargo Revolving Credit Agreement means the $2.3 billion credit agreement dated 7 July 2022 between, among others, WestRock Company, WRKCo Inc., WestRock Company of Canada Corp./Compagnie WestRock du Canada Corp., WRK Luxembourg S.à.r.l., the lenders party thereto and Wells Fargo Bank, National Association.

 

1.2Construction

 

(a)Unless a contrary indication appears, any reference in this Agreement to:

 

(i)Adjusted EBITDA shall be a reference to Adjusted EBITDA as determined and/or reported in the relevant Financial Statements;

 

(ii)the Agent, any Coordinator, any Finance Party, any Lender, any Obligor or any Party shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

 

(iii)the Agent acting reasonably shall mean the Agent acting reasonably or acting on the instructions of the relevant Lenders (which themselves shall act reasonably in giving those instructions);

 

(iv)assets includes present and future properties, revenues and rights of every description;

 

(v)a Lender's cost of funds in relation to its participation in a Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of that Loan;

 

(vi)a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

(vii)including shall mean "including but not limited to";

 

(viii)jurisdiction of incorporation in the case of an Obligor that is a partnership, an unlimited liability company, a public limited company, a private company limited by shares, a designated activity company or a limited liability company, will be deemed to be a reference to its jurisdiction of incorporation or its jurisdiction of formation and registration, as applicable;

 

(ix)indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

(x)an Interest Period includes each period determined under this Agreement by reference to which interest on a Swingline Loan is calculated;

 

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(xi)a Lender includes a Swingline Lender unless the context otherwise requires;

 

(xii)a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);

 

(xiii)a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law, but if not having the force of law being one with which it is the practice of the relevant person to comply of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation);

 

(xiv)cash includes, without limitation, cash in hand or cash on deposit (including cash on current accounts); and

 

(xv)a provision of law is a reference to that provision as amended or re-enacted and to any subordinate or secondary legislation, rules or regulations made under it.

 

(b)The determination of the extent to which a rate is for a period equal in length to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

(c)Section, Clause and Schedule headings are for ease of reference only.

 

(d)Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

(e)A Borrower providing cash cover for an Ancillary Facility means a Borrower paying an amount in the currency of the Ancillary Facility) to an interest-bearing account in the name of the Borrower and the following conditions being met:

 

(i)the account is with the Ancillary Lender for which that cash cover is to be provided;

 

(ii)until no amount is or may be outstanding under that Ancillary Facility, withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Ancillary Facility; and

 

(iii)the Borrower has executed a security document over that account, in form and substance satisfactory to the Finance Party with which that account is held, creating a first ranking security interest over that account.

 

(f)A Default or an Event of Default is continuing if it has not been remedied or waived.

 

(g)A reference in this Agreement to a page or screen of an information service displaying a rate shall include:

 

(i)any replacement page of that information service which displays that rate; and

 

(ii)the appropriate page of such other information service which displays that rate from time to time in place of that information service,

 

and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Agent after consultation with the Obligors' Agent.

 

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(h)A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate.

 

(i)Any Reference Rate Supplement relating to a currency overrides anything relating to that currency in:

 

(i)Schedule 14 (Reference Rate Terms); or

 

(ii)any earlier Reference Rate Supplement.

 

(j)A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in:

 

(i)Schedule 15 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 16 (Cumulative Compounded RFR Rate), as the case may be; or

 

(ii)any earlier Compounding Methodology Supplement.

 

(k)Any accounting or financial term shall, unless otherwise indicated, be construed in accordance with the Accounting Principles.

 

(l)A Borrower repaying or prepaying Ancillary Outstandings means:

 

(i)that Borrower providing cash cover in respect of the Ancillary Outstandings;

 

(ii)the maximum amount payable under the Ancillary Facility being reduced or cancelled in accordance with its terms; or

 

(iii)the Ancillary Lender being satisfied that it has no further liability under that Ancillary Facility,

 

and the amount by which Ancillary Outstandings are repaid or prepaid under paragraphs (i) and (ii) above is the amount of the relevant cash cover, reduction or cancellation.

 

(m)An amount borrowed includes any amount utilised by way of an Ancillary Facility.

 

1.3Foreign exchange rate fluctuations

 

When applying baskets, thresholds and other exceptions to the representations, warranties, undertakings and Events of Default, the equivalent to an amount in the Base Currency shall be calculated using the Agent's Spot Rate of Exchange on the date of the Group incurring or making the relevant disposal, investment, loan, debt or guarantee or taking other relevant action. No Event of Default or breach of any representation and warranty or undertaking shall arise merely as a result of a subsequent change in the Base Currency equivalent, in any currency or currencies, of any relevant amount due to fluctuations in exchange rates.

 

1.4Financial calculations

 

For the purposes of calculating and/or determining Consolidated Total Assets, Adjusted EBITDA and/or unconsolidated earnings before interest, tax, depreciation and amortisation for any period prior to any transaction (including the Combination) being consolidated for a full twelve month period and reported as such in the applicable Financial Statements, the Parent (or the Obligors’ Agent) may calculate Consolidated Total Assets, Adjusted EBITDA and/or unconsolidated earnings before interest, tax, depreciation and amortisation as it may determine acting reasonably and in good faith.

 

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1.5Currency symbols and definitions

 

(a)$, USD and US Dollars denote the lawful currency of the United States of America.

 

(b)£, GBP and Sterling denote the lawful currency of the United Kingdom.

 

(c)€, EUR and euro denote the single currency of the Participating Member States.

 

(d)SEK and Swedish Kronor means the lawful currency for the time being of Sweden.

 

(e)CAD and Canadian Dollars means the lawful currency for the time being of Canada.

 

(f)¥, JPY and Japanese Yen means the lawful currency for the time being of Japan.

 

(g)CHF and Swiss Francs means the lawful currency for the time being of Switzerland

 

1.6Third party rights

 

(a)Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Act) to enforce or to enjoy the benefit of any term of this Agreement.

 

(b)Subject to paragraph (c) of Clause 38.2 (Exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

1.7Personal liability

 

No personal liability shall attach to any director, officer or employee of any member of the Group or the WestRock Group for any representation or statement made by that member of the Group or the WestRock Group in any Finance Document or certificate signed by a director, officer or employee save in the case of fraud in which case liability (if any) will be determined in accordance with applicable law.

 

1.8Dutch terms

 

In this Agreement, where it relates to a Dutch entity or the context so requires, a reference to:

 

(a)a necessary action to authorise where applicable, includes without limitation:

 

(i)any action required to comply with the Works Councils Act of The Netherlands (Wet op de ondernemingsraden); and

 

(ii)obtaining an unconditional positive advice (advies) from the competent works council(s);

 

(b)works council means each works council (ondernemingsraad) or central or group works council (centrale of groeps ondernemingsraad) having jurisdiction over that person;

 

(c)constitutional documents means the articles of association (statuten) and deed of incorporation (akte van oprichting) and an up-to-date extract of registration of the Trade Register of the Dutch Chamber of Commerce;

 

(d)The Netherlands means the European part of the Kingdom of the Netherlands and Dutch means in or of The Netherlands;

 

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(e)a security interest or security includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijke zekerheid);

 

(f)a winding-up, administration or dissolution includes a bankruptcy (faillissement) or dissolution (ontbinding);

 

(g)a moratorium includes surseance van betaling and a moratorium is declared or occurs includes surseance verleend;

 

(h)any procedure or step taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Section 36 of the Tax Collection Act of The Netherlands (Invorderingswet 1990);

 

(i)an administrator includes a bewindvoerder or a beoogd bewindvoerder;

 

(j)a liquidator includes a curator or a beoogd curator;

 

(k)an attachment includes a beslag;

 

(l)a composition includes an akkoordprocedure buiten faillissement;

 

(m)an other similar officer includes a restructuring expert (herstructureringsdeskundige) or observer (observator); and

 

(n)reorganisation includes statutory proceedings for the restructuring of debt (akkoordprocedure) under the Dutch Bankruptcy Act (Faillissementswet).

 

1.9Irish terms

 

In this Agreement, where it relates to an Irish entity or the context so requires, a reference to:

 

(a)examiner means an examiner or interim examiner appointed pursuant to Section 509 of the Irish Companies Act and examinership shall be construed accordingly;

 

(b)inability to pay its debts shall be deemed to mean the relevant Irish Obligor is unable to pay its debts within the meaning of section 509(3) or section 570 of the Irish Companies Act;

 

(c)Ireland means the island of Ireland, exclusive of Northern Ireland; and

 

(d)process advisor has the meaning given to that term in section 558A of the Irish Companies Act.

 

2.The Facilities

 

2.1The Facilities

 

(a)Subject to the terms of this Agreement, the Lenders make available to the relevant Borrowers:

 

(i)a US Dollar term loan facility in an aggregate amount equal to the Total Facility A Commitments; and

 

(ii)a multicurrency revolving loan facility in an aggregate amount equal to the Total Facility B Commitments

 

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(b)Subject to the terms of this Agreement, the Swingline Lenders make available to the relevant Borrowers a US Dollar Swingline Loan facility in an aggregate amount equal to the Total Swingline Commitments.

 

2.2Increase after cancellation

 

(a)The Obligors' Agent may by giving prior notice to the Agent by no later than the date falling 30 Business Days after the effective date of a cancellation of:

 

(i)the Available Commitments of a Defaulting Lender in accordance with Clause 10.9 (Right of cancellation in relation to a Defaulting Lender); or

 

(ii)the Commitments of a Lender under any Facility in accordance with:

 

(A)Clause 10.2 (Illegality); or

 

(B)paragraph (a) of Clause 10.8 (Right of replacement or repayment and cancellation in relation to a single Lender),

 

request that the Commitments relating to that Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Commitments relating to that Facility so cancelled as follows:

 

I.the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an Increase Lender) selected by the Obligors' Agent and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments;

 

II.each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;

 

III.each Increase Lender shall become a Party as a Lender and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;

 

IV.the Commitments of the other Lenders shall continue in full force and effect; and

 

V.any increase in the Commitments shall take effect on the date specified by the Obligors' Agent in the notice referred to above or any later date on which the Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender.

 

(b)The Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation.

 

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(c)An increase in the Commitments relating to a Facility will only be effective on:

 

(i)the execution by the Agent of an Increase Confirmation from the relevant Increase Lender; and

 

(ii)in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the Agent being satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender. The Agent shall promptly notify the Obligors' Agent and the Increase Lender upon being so satisfied.

 

(d)Each Increase Lender, by executing the Increase Confirmation, confirms that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.

 

(e)The Obligors' Agent shall promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably and properly incurred by it in connection with any increase in Commitments under this Clause 2.2.

 

(f)The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 27.3 (Assignment or transfer fee) if the increase was a transfer pursuant to Clause 27.5 (Procedure for transfer) and if the Increase Lender was a New Lender.

 

(g)The Obligors' Agent may pay to the Increase Lender a fee in the amount and at the times agreed between the Obligors' Agent and the Increase Lender in a Fee Letter.

 

(h)Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.

 

(i)Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

(i)an Existing Lender were references to all the Lenders immediately prior to the relevant increase;

 

(ii)the New Lender were references to that Increase Lender; and

 

(iii)a re-transfer and re-assignment were references to respectively a transfer and assignment.

 

2.3Finance Parties' rights and obligations

 

(a)The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

(b)The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents, and any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

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(c)A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

2.4Obligors' Agent

 

(a)Each Obligor (other than the Obligors' Agent) by its execution of this Agreement or an Accession Letter irrevocably appoints the Obligors' Agent (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

(i)the Obligors' Agent on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests and Selection Notices), to execute on its behalf any Accession Letter and any guarantee or security confirmation, extension or ratification (subject to any applicable limitations on such guarantee or security referred to in Clause 21 (Guarantee and Indemnity)), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

 

(ii)each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Obligors' Agent,

 

and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests and Selection Notices) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication and each Finance Party may rely on any action taken by the Obligors' Agent on behalf of that Obligor.

 

(b)Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' Agent and any other Obligor, those of the Obligors' Agent shall prevail.

 

(c)The Parent or the existing Obligors' Agent may at any time, designate another Obligor as Obligors' Agent.

 

(d)Unless otherwise provided in this Agreement, if the Obligors' Agent ceases to be an Obligor, the Parent will automatically become the Obligors' Agent.

 

(e)Each Obligor acknowledges and agrees to paragraphs (c) and (d) above and agrees that, upon any operation of those paragraphs, it authorises the replacement Obligors' Agent as Obligors' Agent in the terms set out in paragraphs (a) and (b) above.

 

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2.5Closing Date Obligors

 

Smurfit Kappa Group shall ensure that on or before the Closing Date:

 

(a)each Closing Date Guarantor becomes an Additional Guarantor (and any conditions to the effectiveness of its guarantee, as set out in the relevant Accession Letter, are satisfied); and

 

(b)Smurfit WestRock becomes the Parent in accordance with Clause 28.5 (Accession of Parent).

 

3.Purpose

 

3.1Purpose

 

(a)Each Borrower shall apply all amounts borrowed by it under Facility A directly or indirectly towards:

 

(i)refinancing all or part of the indebtedness outstanding under the WestRock Farm Credit System Credit Agreement;

 

(ii)to the extent any member of the Group made any payment (directly or indirectly) on or prior to the Closing Date towards the refinancing of any indebtedness under the WestRock Farm Credit System Credit Agreement, reimbursing any such payment; and

 

(iii)financing other amounts, including any hedging payments, fees, costs and expenses and other amounts incurred in connection with the Transaction and/or any other transactions contemplated by the Finance Documents.

 

(b)Each Borrower shall apply all amounts borrowed by it under Facility B directly or indirectly towards financing or refinancing the general corporate purposes and working capital purposes of the Group.

 

(c)Each Borrower shall apply all amounts borrowed by it under the Swingline Facility directly or indirectly towards financing or refinancing any note or other instrument maturing under a commercial paper programme of a member of the Group.

 

3.2Monitoring

 

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4.Conditions of Utilisation

 

4.1Initial conditions precedent

 

(a)No Loan may be advanced unless the Agent has received (or waived the requirement to receive) all of the documents and other evidence listed in Part 1 of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent (acting reasonably). The Agent shall notify the Obligors' Agent and the Lenders promptly upon this condition being met.

 

(b)If a Loan is requested before the Agent has given the notice under paragraph (a) above, each Finance Party shall perform its obligations under this Agreement in relation to that Loan, and each Lender shall make its participation in such a Loan available to the Agent in accordance with this Agreement, but the Agent will not advance that Loan to the relevant Borrower (or make any other payments as directed in the relevant Utilisation Request) unless and until it has given that notice under paragraph (a) above. Clause 18.2 (Other indemnities) shall apply to any such Loan. If a requested Loan is not advanced on its proposed Utilisation Date as a result of the operation of this paragraph, the Agent will, promptly after such proposed Utilisation Date, repay to each Lender the amount which it had made available to the Agent under this paragraph.

 

(c)The Agent shall notify the Obligors' Agent upon request of the status of each condition precedent listed in Part 1 of Schedule 2 (Conditions Precedent).

 

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4.2Further conditions precedent

 

The Lenders will only be obliged to comply with Clause 5.5 (Lenders' participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

(a)in the case of a Rollover Loan, no Declared Default has occurred and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and

 

(b)the Repeating Representations to be made by each Obligor are true in all material respects.

 

4.3Conditions relating to Optional Currencies

 

(a)A currency will constitute an Optional Currency in relation to a Loan if:

 

(i)it is readily available in the amount required and freely convertible into the Base Currency in the wholesale market for that currency at the Specified Time and on the Utilisation Date for that Loan;

 

(ii)it is a Pre-Approved Currency or has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Loan; and

 

(iii)there are Reference Rate Terms for that currency.

 

(b)If the Agent has received a request from the Obligors' Agent for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the Obligors' Agent by the Specified Time:

 

(i)in the case of a currency that is not a Pre-Approved Currency, whether or not the relevant Lenders participating in that Loan have granted their approval; and

 

(ii)if approval has been granted or in respect of a Pre-Approved Currency, the minimum amount (and, if required, integral multiples) for any subsequent Utilisation in that currency (other than for euros or Sterling where the minimum amount shall be in accordance with paragraphs (d)(ii) and (d)(iii) of Clause 5.4 (Currency and amount).

 

4.4Maximum number of Loans

 

(a)A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation:

 

(i)more than one Facility A Loan would be outstanding; or

 

(ii)more than 40 Facility B Loans would be outstanding.

 

(b)Any Loan made by a single Lender under Clause 7.2 (Unavailability of a currency) shall not be taken into account in this Clause 4.4.

 

(c)Any Separate Loan shall not be taken into account in this Clause 4.4.

 

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4.5Certain Funds – Facility A Loans

 

(a)In this Agreement:

 

Major Default means the Events of Default set out in:

 

(i)Clause 26.1 (Non-payment);

 

(ii)Clause 26.2 (Other obligations) in so far as it relates to a breach of a Major Undertaking;

 

(iii)Clause 26.5 (Insolvency);

 

(iv)Clause 26.6 (Insolvency proceedings) other than paragraph (a)(iv) of that Clause;

 

(v)Clause 26.3 (Misrepresentation), but only in so far as it relates to any Major Representation; and

 

(vi)Clause 26.9 (Unlawfulness) and Clause 26.10 (Repudiation); and Clause 26.11 (United States Bankruptcy Laws),

 

in each case with respect only to any person which is an Original Obligor (other than an obligation on an Original Obligor to procure compliance by a person which is not an Original Obligor).

 

Major Representations means the representations set out in:

 

(i)Clause 22.1 (Status);

 

(ii)Clause 22.2 (Binding obligations);

 

(iii)Clause 22.3 (Non-conflict with other obligations), other than paragraph (c) of that Clause; and

 

(iv)Clause 22.4 (Power and authority);

 

(v)Clause 22.5 (Validity and admissibility in evidence);

 

(vi)Clause 22.6 (Governing law and enforcement);

 

(vii)Clause 22.12 (Anti-corruption);

 

(viii)Clause 22.13 (Sanctions); and

 

(ix)and Clause 22.14 (Pari passu ranking),

 

in each case with respect only to any person which is an Original Obligor (other than an obligation on an Original Obligor to procure compliance by a person which is not an Original Obligor).

 

Major Undertakings means the undertakings set out in

 

(i)Clause 24.2 (Compliance with laws)

 

(ii)Clause 24.3 (Negative pledge);

 

(iii)Clause 24.4 (Disposals);

 

(iv)Clause 24.5 (Financial Indebtedness);

 

(v)Clause 24.6 (Mergers);

 

(vi)Clause 24.8 (Pari passu ranking); and

 

(vii)Clause 24.9 (Sanctions),

 

in each case with respect only to any person which is an Original Obligor (other than an obligation on an Original Obligor to procure compliance by a person which is not an Original Obligor).

 

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(b)During the Availability Period, no Lender may refuse to make its participation in a Facility A Loan available, cancel any Facility A Commitment, exercise any right of rescission, set-off or similar right or remedy, cancel, accelerate or cause repayment or prepayment of any amounts owing under any Finance Document to the extent to do so would prevent or limit the making of a Facility A Loan unless:

 

(i)any of the conditions precedent set out in Part 1 (Conditions Precedent to Initial Utilisation) of Schedule 2 (Conditions Precedent) have not been satisfied;

 

(ii)any Major Representation is not correct or would be incorrect immediately after the making of the Loan;

 

(iii)any Major Default is outstanding or would result from the making of the Loan;

 

(iv)any Change of Control has occurred; or

 

(v)it is unlawful for that Lender to perform its obligations under the Finance Documents.

 

(c)Immediately upon the expiry of the Availability Period for Facility A, all such rights, remedies and entitlements shall be available to the Lenders notwithstanding that they may not have been used or been available for use during that Availability Period.

 

5.Utilisation – Facility A and Facility B Loans

 

5.1General

 

This Clause 5 does not apply to Swingline Loans.

 

5.2Delivery of a Utilisation Request

 

A Borrower (or the Obligors' Agent on its behalf) may utilise Facility A or Facility B by delivery to the Agent of a duly completed Utilisation Request not later than:

 

(a)the Specified Time; or

 

(b)in relation to Loans to be drawn on the first Utilisation Date and denominated in US Dollars, 11:00 am (New York time) two Business Days before the proposed Utilisation Date.

 

5.3Completion of a Utilisation Request

 

(a)Subject to paragraph (b) and (e) below, each Utilisation Request is irrevocable.

 

(b)The Obligors' Agent may revoke any Utilisation Request which is delivered prior to the Closing Date, by notice to the Agent, at any time before the Closing Date has occurred.

 

(c)If any Utilisation Request is revoked under paragraph (b) then the Agent will promptly notify the Lenders, and Clause 18.2 (Other indemnities) shall apply.

 

(d)A Utilisation Request will not be regarded as having been duly completed unless:

 

(i)it identifies the Facility to be utilised;

 

(ii)it identifies the Borrower to borrow the Loan, which is a Borrower in relation to the relevant Facility;

 

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(iii)the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

 

(iv)the currency and amount of the Utilisation comply with Clause 5.4 (Currency and amount); and

 

(v)the proposed Interest Period complies with Clause 13 (Interest Periods).

 

(e)A Utilisation Request delivered in connection with the initial Utilisation of Facility A or Facility B may be conditional on the Closing Date having occurred, in which case such Utilisation Request may be revoked by the Borrower giving notice to the Agent if the Closing Date has not occurred on or before the proposed Utilisation Date.

 

(f)Only one Loan may be requested in each Utilisation Request.

 

5.4Currency and amount

 

(a)The currency specified in a Utilisation Request for a Facility A Loan must be the Base Currency.

 

(b)The currency specified in a Utilisation Request for a Facility B Loan must be the Base Currency or an Optional Currency.

 

(c)The amount of a proposed Facility A Loan must be a minimum of $1,000,000.

 

(d)The amount of a proposed Facility B Loan must be:

 

(i)if the currency selected is the Base Currency, a minimum of $5,000,000 or, if less, the Available Facility;

 

(ii)if the currency selected is euro, a minimum of €5,000,000 or, if less, the Available Facility;

 

(iii)if the currency selected is Sterling, a minimum of £5,000,000 or, if less, the Available Facility; or

 

(iv)if the currency selected is an Optional Currency other than euro or Sterling, the minimum amount (and, if required, integral multiple) specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Facility,

 

and in any event such that its Base Currency Amount is less than or equal to the Available Facility.

 

5.5Lenders' participation

 

(a)If the conditions set out in this Agreement have been met, and subject to Clause 9.2 (Repayment of Facility B Loans), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

(b)Other than as set out in paragraph (c) below, the amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

 

(c)If a Loan is made to repay Ancillary Outstandings, each Lender's participation in that Utilisation will be in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in the Loans then outstanding bearing the same proportion to the aggregate amount of the Loans then outstanding as its Commitment bears to the Total Commitments.

 

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(d)The Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and shall notify each Lender of the amount, currency and the Base Currency Amount of each Loan, the amount of its participation in that Loan and, in the case of a Facility B Loan and if different, the amount of that participation to be made available in accordance with Clause 32.1 (Payments to the Agent), in each case by the Specified Time.

 

5.6Debt pushdown – Facility A

 

(a)If the Obligors' Agent delivers a duly completed Debt Pushdown Notice to the Agent, then the Debt Pushdown Borrower specified in that Debt Pushdown Notice will be deemed to have delivered a Utilisation Request for a Facility A Loan (the Debt Pushdown Loan) which differs from the Facility A Loan then owing (the Original Loan) only in so far as:

 

(i)the Debt Pushdown Loan is owed by the Debt Pushdown Borrower rather than the original Borrower;

 

(ii)the Utilisation Date of the Debt Pushdown Loan is the date specified as such in the Debt Pushdown Notice (the Debt Pushdown Date); and

 

(iii)the first Interest Period of the Debt Pushdown Loan will be the period from its Utilisation Date to the last day of the then current Interest Period (the Current Interest Period) of the Original Loan.

 

(b)A Debt Pushdown Notice will only be considered duly completed if:

 

(i)it provides the information set out in the form of Debt Pushdown Notice; and

 

(ii)the Debt Pushdown Date is no less than two Business Days after the date of the notice.

 

(c)Only one Debt Pushdown Notice may be delivered.

 

(d)On the Debt Pushdown Date, provided that the Closing Date has occurred or occurs on the Debt Pushdown Date:

 

(i)each Lender shall (subject to the other provisions of this Agreement) be deemed to make its participation in the Debt Pushdown Loan available to the Debt Pushdown Borrower, in accordance with the Utilisation Request deemed delivered for that Debt Pushdown Loan;

 

(ii)the proceeds of the Debt Pushdown Loan shall be deemed applied by the Debt Pushdown Borrower in or towards repayment of the Original Loan (on behalf of the Borrower which had borrowed the Original Loan); and

 

(iii)each Lender's participation in the Debt Pushdown Loan shall be treated as having been made available to, and applied by, the Debt Pushdown Borrower in or towards repayment of that Lender's participation in the Original Loan.

 

(e)Paragraphs (d)(i) to (iii) above shall operate on a cashless basis. No Lender shall be required to make any part of its participation in any Debt Pushdown Loan available in cash and the Debt Pushdown Borrower shall not be required to make repayment (on behalf of the other Borrower) of any Original Loan in cash.

 

(f)On the Debt Pushdown Date, provided that the Closing Date has occurred or occurs on the Debt Pushdown Date, the Debt Pushdown Borrower irrevocably:

 

(i)acknowledges and agrees to the Debt Pushdown Notice given by the Obligors’ Agent; and

 

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(ii)agrees to borrow the Debt Pushdown Loan for which it is deemed, under paragraph (a) above, to have delivered a Utilisation Request,

 

and each of the Debt Pushdown Borrower and the other Obligors authorises each Lender to apply that Lender's participation in each Debt Pushdown Loan in or towards repayment of that Lender's participation in the Original Loan.

 

(g)This Clause 5.6 applies notwithstanding that the Availability Period for Facility A may have ended before the Debt Pushdown Date or that any Utilisation Request deemed delivered under paragraph (a) above may be deemed delivered after any relevant Specified Time.

 

(h)No Break Costs shall apply to the repayment of the Original Loan under paragraph (d) above.

 

(i)Interest accrued in respect of the Original Loan to the date of its repayment under paragraph (d) above will be payable by the Borrower of the Original Loan on the last day of the Current Interest Period applicable to the Original Loan.

 

6.Utilisation – Swingline Loans

 

6.1General

 

The following Clauses:

 

(a)Clause 4.2 (Further conditions precedent) and Clause 4.3 (Conditions relating to Optional Currencies);

 

(b)Clause 5 (Utilisation – Facility A and Facility B Loans);

 

(c)Clause 7 (Optional Currencies);

 

(d)Clause 12 (Interest), other than Clause 12.3 (Interest – Swingline Loans) or Clause 12.7 (Default interest);

 

(e)Clause 13 (Interest Periods), other than Clause 13.3 (Interest Periods: Swingline Loans); and

 

(f)Clause 14 (Changes to the Calculation of Interest),

 

do not apply to Swingline Loans.

 

6.2Delivery of a Utilisation Request for Swingline Loans

 

(a)A Borrower (or the Obligors' Agent on its behalf) may utilise the Swingline Facility by delivery to the Agent of a duly completed Utilisation Request no later than 9:00 am (New York time) on the Utilisation Date.

 

(b)Each Utilisation Request for a Swingline Loan must be sent to the Agent to the address or, if relevant, electronic mail address or other such information in New York notified by the Agent for this purpose with a copy to its address or, if relevant, electronic mail address or other such information referred to in Clause 34 (Notices).

 

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6.3Completion of a Utilisation Request for Swingline Loans

 

(a)Each Utilisation Request for a Swingline Loan is irrevocable and will not be regarded as having been duly completed unless:

 

(i)it identifies the Borrower, which is a Borrower in relation to Facility B;

 

(ii)it specifies that it is for a Swingline Loan;

 

(iii)the proposed Utilisation Date is a Swingline Business Day within the Availability Period applicable to Facility B;

 

(iv)the proposed Swingline Loan is denominated in US Dollars;

 

(v)the amount of the proposed Swingline Loan is not more than the Available Swingline Facility and is a minimum of $5,000,000 or, if less, the Available Swingline Facility; and

 

(vi)the proposed Interest Period:

 

(A)does not extend beyond the Termination Date applicable to Facility B;

 

(B)ends on a Swingline Business Day; and

 

(C)is a period of not more than five Swingline Business Days or if the fifth Swingline Business Day after the proposed Utilisation Date is not a Business Day, the proposed Interest Period may end on the next Swingline Business Day which is a Business Day.

 

(b)Only one Swingline Loan may be requested in each Utilisation Request.

 

(c)A Swingline Loan may not be applied in repayment or prepayment of another Swingline Loan.

 

6.4Swingline Lenders' participation

 

(a)If the conditions set out in this Agreement have been met:

 

(i)the Agent shall notify the Lenders of a Utilisation Request no later than 10:00 am (New York time) on the proposed Utilisation Date; and

 

(ii)each Swingline Lender shall make its participation in each Swingline Loan available in accordance with the terms of this Agreement.

 

(b)The Swingline Lenders will only be obliged to comply with paragraph (a) above if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

(i)no Default is continuing or would result from the proposed Utilisation; and

 

(ii)the Repeating Representations to be made by each Obligor are true in all material respects.

 

(c)The amount of each Swingline Lender's participation in each Swingline Loan will be equal to the proportion borne by its Available Swingline Commitment to the Available Swingline Facility immediately prior to making the Swingline Loan, adjusted to take account of any limit applying under Clause 6.5 (Relationship with Facility B).

 

(d)The Agent shall notify each Swingline Lender of its participation in that Swingline Loan by no later than 10.00 am (New York time) on the proposed Utilisation Date.

 

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6.5Relationship with Facility B

 

(a)This Clause 6.5 applies when a Swingline Loan is outstanding or is to be borrowed.

 

(b)Facility B may be used by way of Swingline Loans. The Swingline Facility is not independent of Facility B.

  

(c)Notwithstanding any other term of this Agreement a Lender is only obliged to participate in a Facility B Loan or a Swingline Loan to the extent that it would not result in the Base Currency Amount of its participation and the participation of its Affiliate which is a Swingline Lender (if any) in the Facility B Loans and Swingline Loans exceeding its Overall Facility B Commitment.

 

(d)Where, but for the operation of paragraph (c) above, the Base Currency Amount of a Lender's participation and the participation of its Affiliate which is a Swingline Lender (if any) in the Facility B Loans and Swingline Loans would have exceeded its Overall Facility B Commitment, the excess will be apportioned among the other Lenders required under this Agreement to make available a participation in the relevant Loan pro rata according to their relevant Commitments. This calculation will be applied as often as necessary until participations in the Loan are apportioned among the relevant Lenders in a manner consistent with paragraph (c) above.

 

6.6Cancellation of Swingline Commitment

 

The Swingline Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility B.

 

6.7Loss sharing

 

(a)If a Facility B Loan (including a Swingline Loan) or interest on a Facility B Loan (including a Swingline Loan) is not paid in full on its due date, the Agent (if requested to do so by any affected Lender) shall calculate the amount (if any) which needs to be paid or received by each Lender with a Facility B Commitment to place that Lender in the position it would have been in had each Lender (or its Affiliate) with a Facility B Commitment participated in that Loan in the proportion borne by its Facility B Commitment to the Total Facility B Commitments or, if the Total Facility B Commitments are then zero, the proportion borne by its Facility B Commitment to the Total Facility B Commitments immediately prior to their reduction to zero.

 

(b)The calculation of the Agent is designed solely to allocate the unpaid amount proportionally between the Lenders with a Facility B Commitment according to their Facility B Commitments and will not take into account any commitment fee or other amount payable under the Finance Documents.

 

(c)On each occasion which this Clause 6.7 applies, the Agent will set a date (the Loss Sharing Date) on which payments must be made under this Clause 6.7. The Agent shall give at least three Business Days' notice to each affected Lender of this date and the amount of the payment (if any) to be paid or received by it on this date.

 

(d)On the Loss Sharing Date:

 

(i)each affected Lender who has to make a payment shall pay to the Agent the relevant amount set out in the notice referred to in paragraph (c) above and

 

(ii)out of the amounts the Agent receives, the Agent shall pay to each affected Lender who is entitled to receive a payment the amount set out in that notice.

 

(e)If the amount actually received by the Agent from the Lenders under paragraph (d) above is insufficient to pay the full amount required to be paid under that paragraph, the Agent shall distribute the amount it actually receives among the affected Lenders pro rata to the amounts they are entitled to receive under that paragraph.

 

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(f)If a Lender makes a payment to the Agent under this Clause 6.7 then, to the extent that that payment is distributed by the Agent under paragraph (d) or (e) above, as between the relevant Obligor and that Lender an amount equal to the amount of that distributed payment will be treated as not having been paid by the relevant Obligor.

 

(g)Any payment under this Clause 6.7 will not reduce the obligations in aggregate of any Obligor.

 

7.Optional Currencies

 

7.1Selection of currency

 

A Borrower (or the Obligors' Agent on behalf of a Borrower) shall select the currency of a Facility B Loan in a Utilisation Request.

 

7.2Unavailability of a currency

 

(a)Other than in respect of Sterling or euro, if before the Specified Time:

 

(i)a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or

 

(ii)a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,

 

the Agent will give notice to the relevant Borrower to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 7.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender's proportion of the Base Currency Amount or, in respect of a Rollover Loan, an amount equal to that Lender's proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.

 

(b)Any part of a Loan treated as a separate Loan under this Clause 7 will not be taken into account for the purposes of any limit on the number of Loans or currencies outstanding at any one time.

 

(c)A Loan will still be treated as a Rollover Loan if it is not denominated in the same currency as the maturing Loan by reason only of the operation of this Clause 7.

 

7.3Agent's calculations

 

(a)All calculations made by the Agent pursuant to this Clause 7 will take into account any repayment, prepayment, consolidation or division of Loans.

 

(b)Each Lender's participation in a Loan will, subject to paragraph (a) above, be determined in accordance with paragraph (b) of Clause 5.5 (Lenders' participation).

 

8.Ancillary Facilities

 

8.1Type of Facility

 

An Ancillary Facility may be by way of:

 

(a)an overdraft facility;

 

(b)a guarantee, bonding, documentary or stand-by letter of credit facility;

 

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(c)a short term loan facility;

 

(d)a derivatives facility;

 

(e)a foreign exchange facility; or

 

(f)any other facility or accommodation required in connection with the business of the Group and which is agreed by the Obligors' Agent with an Ancillary Lender.

 

8.2Availability

 

(a)If the Obligors' Agent and a Lender agree and except as otherwise provided in this Agreement, the Lender (or Affiliate of such Lender) may provide all or part of its Facility B Commitment as an Ancillary Facility.

 

(b)Other than as provided in Clause 8.12 (Existing Ancillary Facilities), an Ancillary Facility shall not be made available unless, not later than three Business Days prior to the Ancillary Commencement Date for an Ancillary Facility (or such later date as the Agent may agree), the Agent has received from the Obligors' Agent:

 

(i)a notice in writing of the establishment of an Ancillary Facility and specifying:

 

(A)the proposed Borrower(s) (or Affiliates of a Borrower) which may use the Ancillary Facility;

 

(B)the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility;

 

(C)the proposed type of Ancillary Facility to be provided;

 

(D)the proposed Ancillary Lender;

 

(E)the proposed Ancillary Commitment and, in the case of a Multi-account Overdraft, its Designated Gross Amount and its Designated Net Amount (in each case, if applicable); and

 

(F)the proposed currency of the Ancillary Facility (as agreed between the proposed Borrower or proposed Affiliate of a Borrower and the relevant Ancillary Lender); and

 

(ii)any other information which the Agent may reasonably request in connection with the Ancillary Facility.

 

(c)The Agent shall promptly notify the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility (other than an Existing Ancillary Facility).

 

(d)Subject to compliance with paragraph (b) above:

 

(i)the Lender (or Affiliate of such Lender) concerned will become an Ancillary Lender; and

 

(ii)the Ancillary Facility will be available,

 

with effect from the date agreed by the Obligors' Agent and the Ancillary Lender.

 

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8.3Terms of Ancillary Facilities

 

(a)Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Obligors' Agent.

 

(b)Those terms:

 

(i)must be based upon normal commercial terms at that time (except as varied by this Agreement);

 

(ii)may allow only Borrowers (or Affiliates of Borrowers nominated pursuant to Clause 8.9 (Affiliates of Borrowers)) at the time of the Ancillary Commencement Date to use the Ancillary Facility;

 

(iii)may not allow the Ancillary Outstandings to exceed the Ancillary Commitment;

 

(iv)may not allow a Lender's Ancillary Commitment to exceed that Lender's Available Commitment (before taking into account the effect of the Ancillary Facility on that Available Commitment); and

 

(v)must require that the Ancillary Commitment is reduced to zero, and that all Ancillary Outstandings are repaid not later than the Termination Date (or such earlier date as the Commitment of the relevant Ancillary Lender (or its Affiliate) is reduced to zero).

 

(c)If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for:

 

(i)Clause 35.3 (Day count convention and interest calculation) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility;

 

(ii)an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts; and

 

(iii)where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.

 

(d)Interest, commission and fees on Ancillary Facilities are dealt with in Clause 15.6 (Interest, commission and fees on Ancillary Facilities).

 

8.4Repayment of Ancillary Facility

 

(a)An Ancillary Facility shall cease to be available on the Termination Date applicable in respect of the Lender providing that Ancillary Facility or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement.

 

(b)If an Ancillary Facility expires in accordance with its terms the Ancillary Commitment of the Ancillary Lender shall be reduced to zero.

 

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(c)No Ancillary Lender may demand repayment or prepayment of any Ancillary Outstandings prior to the expiry date of the relevant Ancillary Facility unless it is permitted to do so under the terms of the Ancillary Facility and:

 

(i)it is required to reduce the Permitted Gross Outstandings of a Multi-account Overdraft to or towards an amount equal to its Designated Net Amount;

 

(ii)the Total Commitments have been cancelled in full or all outstanding Loans have become due and payable in accordance with the terms of this Agreement;

 

(iii)it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility or it becomes unlawful for any Affiliate of the Ancillary Lender that has an Ancillary Commitment to do so; or

 

(iv)both:

 

(A)the Available Commitments relating to the Facility; and

 

(B)the notice of the demand given by the Ancillary Lender,

 

would not prevent the relevant Borrower (or Affiliate of a Borrower) funding the repayment of those Ancillary Outstandings in full by way of Loans.

 

(d)If a Loan is made to repay Ancillary Outstandings in full, the relevant Ancillary Commitment shall be reduced to zero.

 

8.5Limitation on Ancillary Outstandings

 

Each Borrower (or Affiliate of a Borrower) shall procure that:

 

(a)the Ancillary Outstandings under any Ancillary Facility shall not exceed the Ancillary Commitment applicable to that Ancillary Facility; and

 

(b)in relation to a Multi-account Overdraft:

 

(i)the Ancillary Outstandings shall not exceed the Designated Net Amount applicable to that Multi-account Overdraft; and

 

(ii)the Gross Outstandings shall not exceed the Designated Gross Amount applicable to that Multi-account Overdraft.

 

8.6Adjustment for Ancillary Facilities upon acceleration

 

(a)In this Clause 8.6:

 

(i)Outstandings means, in relation to a Lender, the aggregate of the equivalent in the Base Currency of:

 

(A)its participation in each Loan then outstanding (together with the aggregate amount of all accrued interest, fees and commission owed to it as a Lender); and

 

(B)if the Lender is also an Ancillary Lender, the Ancillary Outstandings in respect of Ancillary Facilities provided by that Ancillary Lender (or by its Affiliate) (together with the aggregate amount of all accrued interest, fees and commission owed to it (or to its Affiliate) as an Ancillary Lender in respect of the Ancillary Facility); and

 

(ii)Total Outstandings means the aggregate of all Outstandings.

 

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(b)If a notice is served under Clause 26.12 (Acceleration) (other than a notice declaring Utilisations to be due on demand), each Lender and each Ancillary Lender shall (subject to paragraph (g) below) promptly adjust (by making or receiving (as the case may be) corresponding transfers of rights and obligations under the Finance Documents relating to Outstandings) their claims in respect of amounts outstanding to them under the Facility and each Ancillary Facility to the extent necessary to ensure that after such transfers the Outstandings of each Lender bear the same proportion to the Total Outstandings as such Lender's Commitment bears to the Total Commitments, each as at the date the notice is served under Clause 26.12 (Acceleration).

 

(c)If an amount outstanding under an Ancillary Facility is a contingent liability and that contingent liability becomes an actual liability or is reduced to zero after the original adjustment is made under paragraph (b) above, then each Lender and Ancillary Lender will make a further adjustment (by making or receiving (as the case may be) corresponding transfers of rights and obligations under the Finance Documents relating to Outstandings to the extent necessary) to put themselves in the position they would have been in had the original adjustment been determined by reference to the actual liability or, as the case may be, zero liability and not the contingent liability.

 

(d)Any transfer of rights and obligations relating to Outstandings made pursuant to this Clause 8.6 shall be made for a purchase price in cash, payable at the time of transfer, in an amount equal to those Outstandings (less any accrued interest, fees and commission to which the transferor will remain entitled to receive notwithstanding that transfer, pursuant to Clause 27.11 (Pro rata interest settlement)).

 

(e)Prior to the application of the provisions of paragraph (b) above, an Ancillary Lender that has provided a Multi-account Overdraft shall set-off any Available Credit Balance on any account comprised in that Multi-account Overdraft.

 

(f)All calculations to be made pursuant to this Clause 8.6 shall be made by the Agent based upon information provided to it by the Lenders and Ancillary Lenders and the Agent's Spot Rate of Exchange.

 

(g)This Clause 8.6 shall not oblige any Lender to accept the transfer of a claim relating to an amount outstanding under an Ancillary Facility which is not denominated (pursuant to the relevant Finance Document) in either the Base Currency, a currency which has been an Optional Currency for the purpose of any Loan or in another currency which is acceptable to that Lender.

 

8.7Information

 

Each Borrower (or the relevant Affiliate of a Borrower) (or the Obligors' Agent on its behalf) and each Ancillary Lender shall, promptly upon request by the Agent, supply the Agent with any information relating to the operation of an Ancillary Facility (including the Ancillary Outstandings) as the Agent may reasonably request from time to time. Each Borrower (or the relevant Affiliate of a Borrower) consents to all such information being released to the Agent and the other Finance Parties.

 

8.8Affiliates of Lenders as Ancillary Lenders

 

(a)Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose Commitment is the amount set out opposite the relevant Lender's name in Part 2 of Schedule 1 (The Original Parties) and/or the amount of any Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement.

 

(b)The Obligors' Agent shall specify any relevant Affiliate of a Lender in any notice delivered by the Obligors' Agent to the Agent pursuant to paragraph (b)(i) of Clause 8.2 (Availability).

 

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(c)An Affiliate of a Lender which becomes an Ancillary Lender must accede to this Agreement by delivering to the Agent an Ancillary Lender Accession Letter duly executed by the Obligors' Agent and the Ancillary Lender.

 

(d)An Affiliate of a Lender referred to in paragraph (c) above will become an Ancillary Lender on the date on which the Agent enters into the Ancillary Lender Accession Letter delivered under paragraph (c) above.

 

(e)If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender, its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.

 

(f)Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.

 

8.9Affiliates of Borrowers

 

(a)Subject to the terms of this Agreement, an Affiliate of a Borrower may with the approval of the relevant Ancillary Lender become a borrower with respect to an Ancillary Facility.

 

(b)The Obligors' Agent shall specify any relevant Affiliate of a Borrower in any notice delivered by the Obligors' Agent to the Agent pursuant to paragraph (b)(i) of Clause 8.2 (Availability).

 

(c)Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.

 

(d)Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or Ancillary Document.

 

8.10Commitment amounts

 

Notwithstanding any other term of this Agreement, each Lender shall ensure that at all times its Commitment is not less than:

 

(a)its Ancillary Commitment; or

 

(b)the Ancillary Commitment of its Affiliate.

 

8.11Amendments and Waivers – Ancillary Facilities

 

No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including under this Clause 8). In such a case, Clause 38 (Amendments and Waivers) will apply.

 

8.12Existing Ancillary Facilities

 

(a)A Borrower or the Obligors' Agent may by notice (an Existing Ancillary Facility Election Notice) to the Agent prior to the Closing Date request that any Existing Ancillary Facility be deemed to be an Ancillary Facility established under Facility B (in place of the Facility B Commitments of the Lender which, or the Affiliate of which, provides that Existing Ancillary Facility).

 

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(b)An Existing Ancillary Facility Election Notice must:

 

(i)give the information referred to in paragraph (b) of Clause 8.2 (Availability) in relation to the proposed Existing Ancillary Facility; and

 

(ii)specify the date on which the relevant Existing Ancillary Facility is to become an Ancillary Facility (which must be a date within the Availability Period for Facility B and may be conditional upon the occurrence of the Closing Date).

 

(c)With effect from the date specified in an Existing Ancillary Facility Election Notice (or if later, the date on which the relevant Borrower becomes an Obligor), the Existing Ancillary Facility shall be an Ancillary Facility for all purposes under this Agreement.

 

(d)The Agent shall promptly, and in any event, on the date it receives an Existing Ancillary Facility Election Notice, deliver a copy of the Existing Ancillary Facility Election Notice to the Lender which (or the Affiliate of which) provides that Existing Ancillary Facility.

 

9.Repayment

 

9.1Repayment of Facility A Loans

 

(a)Each Borrower which has drawn a Facility A Loan shall:

 

(i)on the third and fourth anniversaries of this Agreement, repay an amount equal to one third of the amount of the Facility A Loan drawn on the first Utilisation Date; and

 

(ii)on the Termination Date, repay any amount of the Facility A Loan then outstanding.

 

(b)No Borrower may reborrow any part of Facility A which is repaid.

 

9.2Repayment of Facility B Loans

 

(a)Each Borrower which has drawn a Facility B Loan shall repay that Loan on the last day of its Interest Period.

 

(b)Without prejudice to each Borrower's obligation under paragraph (a) above, if:

 

(i)one or more Facility B Loans are to be made available to a Borrower:

 

(A)on the same day that a maturing Facility B Loan is due to be repaid by that Borrower;

 

(B)in the same currency as the maturing Facility B Loan (unless it arose as a result of the operation of Clause 7.2 (Unavailability of a currency)); and

 

(C)in whole or in part for the purpose of refinancing the maturing Facility B Loan; and

 

(ii)the proportion borne by each Lender's participation in the maturing Facility B Loan to the amount of that maturing Facility B Loan is the same as the proportion borne by that Lender's participation in the new Facility B Loans to the aggregate amount of those new Facility B Loans,

 

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the aggregate amount of the new Facility B Loans shall, unless the Obligors' Agent notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Facility B Loan so that:

 

(A)if the amount of the maturing Facility B Loan exceeds the aggregate amount of the new Facility B Loans:

 

I.the relevant Borrower will only be required to make a payment under Clause 32.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and

 

II.each Lender's participation in the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Facility B Loan and that Lender will not be required to make a payment under Clause 32.1 (Payments to the Agent) in respect of its participation in the new Facility B Loans; and

 

(B)if the amount of the maturing Facility B Loan is equal to or less than the aggregate amount of the new Facility B Loans:

 

I.the relevant Borrower will not be required to make a payment under Clause 32.1 (Payments to the Agent); and

 

II.each Lender will be required to make a payment under Clause 32.1 (Payments to the Agent) in respect of its participation in the new Facility B Loans only to the extent that its participation in the new Facility B Loans exceeds that Lender's participation in the maturing Facility B Loan and the remainder of that Lender's participation in the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Facility B Loan.

 

(c)At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the Termination Date and will be treated as separate Loans (the Separate Loans) denominated in the currency in which the relevant participations are outstanding.

 

(d)If the Borrower makes a prepayment of a Facility B Loan pursuant to Clause 10.6 (Voluntary prepayment of Facility B Loans), a Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving not less than three Business Days' prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.

 

(e)Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower (or the Obligors' Agent on its behalf) by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Agent (for the account of that Defaulting Lender) on the last day of each Interest Period of that Loan.

 

(f)The terms of this Agreement relating to the Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (a) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

 

9.3Repayment of Swingline Loans

 

Each Borrower that has drawn a Swingline Loan shall repay that Swingline Loan on the last day of its Interest Period.

 

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9.4Extension of Termination Date

 

(a)Each Lender under Facility B agrees that the Obligors' Agent may (at its sole discretion) by delivering an Extension Request (as defined below) to the Agent not less than 30 days and not more than 60 days prior to:

 

(i)the first anniversary of the date of this Agreement, request the extension of the Termination Date for Facility B and the Swingline Facility by a period of one year (the First Extension Request) commencing on the Initial Termination Date (the First Extension Termination Date); and

 

(ii)the second anniversary of the date of this Agreement, request the extension of the then applicable Termination Date for a period of:

 

(A)if the Termination Date for Facility B and the Swingline Facility has been extended, pursuant to paragraph (i) above, one year commencing on the First Extension Termination Date; or

 

(B)if paragraph (A) above does not apply, either one or two years (at the election of the Obligors' Agent) commencing on the Initial Termination Date (the Second Extension Request and together with the First Extension Request an Extension Request),

 

provided that, in each case, the Termination Date in respect of Facility B and the Swingline Facility shall only be extended if no Event of Default is continuing at the time the applicable Extension Request is delivered.

 

(b)A Lender under Facility B may agree to an Extension Request at its sole discretion by delivering an executed Extension Request Acknowledgment in respect of that Extension Request to the Agent. If an Extension Request provides for a deadline for responding to that Extension Request and a Lender does not deliver an executed Extension Request Acknowledgment to the Agent in respect of that Extension Request by such deadline, then that Lender shall be deemed not to have agreed to the Extension Request.

 

(c)Subject to paragraphs (d) and (e) below:

 

(i)the Commitment of each Lender that has not agreed or consented to:

 

(A)a First Extension Request; or

 

(B)a Second Extension Request (provided that a First Extension Request has not been accepted by that Lender),

 

(in each case, a Non-Consenting Lender) will automatically be cancelled on the Initial Termination Date and each Borrower must repay or prepay all amounts, including accrued interest and fees, owing to each Non-Consenting Lender on the Initial Termination Date; and

 

(ii)the Commitment of each Lender that has agreed to a First Extension Request, but has not agreed or consented to a Second Extension Request (a Second Non-Consenting Lender) will automatically be cancelled on the First Extension Termination Date and each Borrower must repay or prepay all amounts, including accrued interest and fees, owing to each Second Non-Consenting Lender on the First Extension Termination Date.

 

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(d)A Lender that does not consent to an Extension Request may, at the Obligors' Agent's sole discretion, be:

 

(i)repaid in full and its Commitment cancelled in full in accordance with Clause 10.8 (Right of replacement or repayment and cancellation in relation to a single Lender)

 

(ii)replaced in full in accordance with Clause 38.5 (Replacement of Lender).

 

(e)The Obligors' Agent may (at its sole discretion) revoke an Extension Request at any time on or before the date falling five Business Days before the Initial Termination Date (in respect of the First Extension Request) or the First Extension Termination Date (in respect of the Second Extension Request), if:

 

(i)one or more Lenders under Facility B have not agreed or consented to that Extension Request; or

 

(ii)where any Lender under Facility B agrees or consents to that Extension Request subject to certain conditions proposed by that Lender and the Obligors' Agent does not accept any of the conditions proposed by that Lender,

 

provided that the Obligors' Agent may not revoke that Extension Request in respect of any Lender who has agreed or consented to that Extension Request if the Obligors' Agent has confirmed its acceptance of the consent of that Lender to that Extension Request and, if applicable, the conditions to the extension proposed by that Lender. The Obligors' Agent shall be under no obligation to accept an extension offer made by any Lender in response to an Extension Request.

 

(f)Any extension fee payable in relation to an Extension Request shall only be payable on or after the date on which the Termination Date in respect of Facility B and the Swingline Facility has been extended pursuant to that Extension Request.

 

10.Prepayment and Cancellation

 

10.1Cancellation of Commitment

 

(a)The Facility A Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility A.

 

(b)The Facility B Commitments which, at that time, are unutilised (taking into account a utilisation of Facility B by way of Swingline Loan) shall be immediately cancelled at the end of the Availability Period for Facility B.

 

10.2Illegality

 

If, in any applicable jurisdiction, it becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or it becomes unlawful for any Affiliate of a Lender which has an Ancillary Commitment for that Lender to do so:

 

(a)that Lender shall promptly notify the Agent upon becoming aware of that event;

 

(b)upon the Agent notifying the Obligors' Agent, each Available Commitment of that Lender and of any Affiliate of that Lender which is a Swingline Lender will be immediately cancelled; and

 

(c)to the extent that the Lender's (and any such Affiliate's) participation has not been transferred pursuant to Clause 38.5 (Replacement of Lender), each Borrower shall repay that Lender's (and any such Affiliate's) participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Obligors' Agent or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's (and any such Affiliate's) corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

 

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10.3Change of control

 

(a)If there is a Change of Control:

 

(i)the Obligors' Agent shall promptly notify the Agent upon becoming aware of that event;

 

(ii)a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan); and

 

(iii)if a Lender so requires and notifies the Agent within 20 Business Days of the Obligors' Agent notifying the Agent of the event, the Agent shall, by not less than 60 days' notice to the Obligors' Agent, cancel each Commitment of that Lender and of any Affiliate of that Lender which is a Swingline Lender and declare the participation of that Lender and of any such Affiliate in all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable. Any such notice will take effect in accordance with its terms.

 

(b)For the purpose of paragraph (a) above acting in concert has the meaning given to it in the Takeover Code.

 

10.4Voluntary cancellation

 

(a)Subject to paragraph (b) below, the Obligors' Agent may, if it gives the Agent not less than two Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of $1,000,000 (or its equivalent)) of Available Commitments. Any cancellation under this Clause 10.4 shall reduce the Commitments of the Lenders rateably under that Facility.

 

(b)The Obligors' Agent may not make a cancellation pursuant to paragraph (a) above to the extent that that cancellation would result in a Lender (or its Affiliate) failing to meet the requirement set out in paragraph (h) of Clause 27.2 (Conditions of assignment or transfer).

 

10.5Voluntary prepayment of Facility A Loans

 

(a)A Borrower to which a Facility A Loan has been made may, if it gives the Agent not less than:

 

(i)in the case of a Term Rate Loan, three Business Days' (or such shorter period as the Majority Lenders may agree) prior notice; or

 

(ii)in the case of a Compounded Rate Loan, five RFR Banking Days' (or such shorter period as the Majority Lenders may agree) prior notice,

 

prepay the whole or any part of any Facility A Loan (but, if in part, being an amount that reduces the Base Currency Amount of the Facility A Loan by a minimum amount of $1,000,000 (or its equivalent)).

 

(b)A Facility A Loan may only be prepaid after the last day of the Availability Period for Facility A (or, if earlier, the day on which the applicable Available Facility is zero).

 

(c)Any prepayment under this Clause 10.5 shall satisfy the obligations under Clause 9.1 (Repayment of Facility A Loans) to the extent of the repayment, in chronological order of future payment unless the Obligors' Agent specifies otherwise at the time of the prepayment.

 

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10.6Voluntary prepayment of Facility B Loans

 

(a)The Borrower to which a Facility B Loan has been made may, if it gives the Agent not less than:

 

(i)in the case of a Term Rate Loan, three Business Days' (or such shorter period as the Majority Lenders may agree) prior notice; or

 

(ii)in the case of a Compounded Rate Loan, five RFR Banking Days' (or such shorter period as the Majority Lenders may agree) prior notice,

 

prepay the whole or any part of any Facility B Loan (but, if in part, being an amount that reduces the Base Currency Amount of the Facility B Loan by a minimum amount of $1,000,000 (or its equivalent)).

 

(b)A Borrower (or the Obligors' Agent on its behalf) may apply any prepayment to be made under this Clause 10.6 against any Loan as it may choose in its sole discretion.

 

(c)If, in any twelve-month period, more than six prepayments are made in whole or any part of a Compounded Rate Loan, a Borrower making any further prepayment shall pay to the Agent (for its own account) an administration fee of $2,500 on the date of the prepayment.

 

10.7Voluntary Prepayment of Swingline Loans

 

(a)The Borrower to which a Swingline Loan has been made may, without notice, prepay at any time the whole or part of that Swingline Loan but, if in part, by a minimum of $1,000,000.

 

(b)Unless a contrary indication appears in this Agreement, any part of the Swingline Facility which is prepaid or repaid may be re-borrowed in accordance with the terms of this Agreement.

 

10.8Right of replacement or repayment and cancellation in relation to a single Lender

 

(a)If:

 

(i)any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 16.2 (Tax gross-up);

 

(ii)any Lender claims indemnification from the Obligors' Agent under Clause 16.3 (Tax indemnity) or Clause 17.1 (Increased Costs); or

 

(iii)any Lender's Commitment is cancelled pursuant to paragraph (d) of Clause 9.4 (Extension of Termination Date),

 

the Obligors' Agent may, while the circumstance giving rise to the requirement for that cancellation, increase or indemnification (as applicable) continues, (A) give the Agent notice of cancellation in full of the Commitment(s) of that Lender and of any Affiliate of that Lender which is a Swingline Lender and its intention to procure the repayment in full of that Lender's and any such Affiliate's participation in the Loans or (B) give the Agent notice of its intention to replace that Lender (together with any Affiliate of that Lender) in accordance with Clause 38.5 (Replacement of Lender).

 

(b)On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment(s) of that Lender and of any such Affiliate shall immediately be reduced to zero.

 

(c)On the last day of each Interest Period which ends after the Obligors' Agent has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Obligors' Agent in that notice), each Borrower to which a Loan is outstanding shall repay that Lender's participation in that Loan and that Lender's corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

 

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10.9Right of cancellation in relation to a Defaulting Lender

 

(a)If any Lender becomes a Defaulting Lender, the Obligors' Agent may, at any time while the Lender continues to be a Defaulting Lender, give the Agent three Business Days' notice of cancellation of each Available Commitment of that Lender.

 

(b)On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

 

(c)The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

 

10.10Restrictions

 

(a)Any notice of cancellation or prepayment given by any Party under this Clause 10 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

(b)Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

 

(c)No Borrower may reborrow any part of Facility A which is prepaid.

 

(d)Unless a contrary indication appears in this Agreement, any part of Facility B which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

 

(e)The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

(f)Subject to Clause 2.2 (Increase after cancellation), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

(g)If the Agent receives a notice under this Clause 10 it shall promptly forward a copy of that notice to either the Obligors' Agent or the affected Lender, as appropriate.

 

(h)If all or part of any Lender's participation in a Loan under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of that Lender's Commitment (equal to the Base Currency Amount of the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

 

10.11Application of prepayments

 

Any prepayment of a Loan pursuant to Clause 10.5 (Voluntary prepayment of Facility A Loans) or Clause 10.6 (Voluntary prepayment of Facility B Loans) shall be applied pro rata to each Lender's participation in that Loan.

 

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11.Rate Switch

 

11.1Switch to Compounded Reference Rate

 

Subject to Clause 11.2 (Delayed switch for existing Term Rate Loans), on and from the Rate Switch Date for a Rate Switch Currency:

 

(a)use of the Compounded Reference Rate will replace the use of the Term Reference Rate for the calculation of interest for Loans in that Rate Switch Currency; and

 

(b)any Loan or Unpaid Sum in that Rate Switch Currency shall be a "Compounded Rate Loan" and Clause 12.2 (Calculation of interest – Compounded Rate Loans) shall apply to each such Loan or Unpaid Sum.

 

11.2Delayed switch for existing Term Rate Loans

 

If the Rate Switch Date for a Rate Switch Currency falls before the last day of an Interest Period for a Term Rate Loan in that currency:

 

(a)that Loan shall continue to be a Term Rate Loan for that Interest Period and Clause 12.1 (Calculation of interest – Term Rate Loans) shall continue to apply to that Loan for that Interest Period;

 

(b)any provision of this Agreement which is expressed to relate to a Compounded Rate Currency shall not apply in relation to that Loan for that Interest Period; and

 

(c)on and from the first day of the next Interest Period (if any) for that Loan:

 

(i)that Loan shall be a "Compounded Rate Loan"; and

 

(ii)Clause 12.2 (Calculation of interest – Compounded Rate Loans) shall apply to that Loan.

 

11.3Notifications by Agent

 

(a)Following the occurrence of a Rate Switch Trigger Event for a Rate Switch Currency, the Agent shall:

 

(i)promptly upon becoming aware of the occurrence of that Rate Switch Trigger Event, notify the Obligors' Agent and the Lenders of that occurrence; and

 

(ii)promptly upon becoming aware of the date of the Rate Switch Trigger Event Date applicable to that Rate Switch Trigger Event, notify the Obligors' Agent and the Lenders of that date.

 

(b)The Agent shall, promptly upon becoming aware of the occurrence of the Rate Switch Date for a Rate Switch Currency, notify the Obligors' Agent and the Lenders of that occurrence.

 

11.4Rate switch definitions

 

In this Agreement:

 

Backstop Rate Switch Date means in relation to a Rate Switch Currency:

 

(a)the date (if any) specified as such in the applicable Reference Rate Terms; or

 

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(b)any other date agreed as such between the Agent, the Majority Lenders and the Obligors' Agent in relation to that currency.

 

Rate Switch Currency means a Term Rate Currency:

 

(a)which is specified as a "Rate Switch Currency" in the applicable Reference Rate Terms; and

 

(b)for which there are Reference Rate Terms applicable to Compounded Rate Loans.

 

Rate Switch Date means:

 

(a)in relation to a Rate Switch Currency, the earlier of:

 

(i)the Backstop Rate Switch Date; and

 

(ii)any Rate Switch Trigger Event Date,

 

for that Rate Switch Currency; or

 

(b)in relation to a Rate Switch Currency which becomes a Rate Switch Currency after the date of this Agreement, the date specified as the "Rate Switch Date" in the applicable Reference Rate Terms.

 

Rate Switch Trigger Event means:

 

(a)in relation to any Rate Switch Currency and the Primary Term Rate applicable to Loans in that Rate Switch Currency:

 

(i)(A) the administrator of that Primary Term Rate or its supervisor publicly announces that such administrator is insolvent; or

 

(B)information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Primary Term Rate is insolvent,

 

provided that, in each case, at that time, there is no successor administrator to continue to provide that Primary Term Rate;

 

(ii)the administrator of that Primary Term Rate publicly announces that it has ceased or will cease to provide that Primary Term Rate for any Quoted Tenor permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Primary Term Rate for that Quoted Tenor;

 

(iii)the supervisor of the administrator of that Primary Term Rate publicly announces that such Primary Term Rate has been or will be permanently or indefinitely discontinued for any Quoted Tenor; or

 

(iv)the administrator of that Primary Term Rate or its supervisor publicly announces that that Primary Term Rate for any Quoted Tenor may no longer be used; and

 

(b)the supervisor of the administrator of that Primary Term Rate publicly announces or publishes information stating that that Primary Term Rate for any Quoted Tenor is no longer, or as of a specified future date will no longer be, representative of the underlying market and the economic reality that it is intended to measure and that such representativeness will not be restored (as determined by such supervisor).

 

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Rate Switch Trigger Event Date means, in relation to a Rate Switch Currency:

 

(a)in the case of an occurrence of a Rate Switch Trigger Event for that Rate Switch Currency described in paragraph (a)(i) of the definition of "Rate Switch Trigger Event", the date on which the relevant Primary Term Rate ceases to be published or otherwise becomes unavailable;

 

(b)in the case of an occurrence of a Rate Switch Trigger Event for that Rate Switch Currency described in paragraph (a)(ii), (a)(iii) or (a)(iv) of the definition of "Rate Switch Trigger Event", the date on which the relevant Primary Term Rate for the relevant Quoted Tenor ceases to be published or otherwise becomes unavailable; and

 

(c)in the case of an occurrence of a Rate Switch Trigger Event for that Rate Switch Currency described in paragraph (b) of the definition of "Rate Switch Trigger Event", the date on which the relevant Primary Term Rate for the relevant Quoted Tenor ceases to be representative of the underlying market and the economic reality that it is intended to measure (as determined by the supervisor of the administrator of such Primary Term Rate).

 

12.Interest

 

12.1Calculation of interest – Term Rate Loans

 

The rate of interest on each Term Rate Loan for an Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

(a)Margin; and

 

(b)Term Reference Rate.

 

12.2Calculation of interest – Compounded Rate Loans

 

(a)The rate of interest on each Compounded Rate Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

(i)Margin; and

 

(ii)Compounded Reference Rate for that day.

 

(b)If any day during an Interest Period for a Compounded Rate Loan is not an RFR Banking Day, the rate of interest on that Compounded Rate Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day.

 

12.3Interest – Swingline Loans

 

(a)The rate of interest on each Swingline Loan for any day during its Interest Period is 0.50% per annum over the rate per annum determined by the Agent to be the Federal Funds Rate for that day.

 

(b)The Agent shall promptly notify the Swingline Lenders and the relevant Borrower of the determination of the rate of interest under paragraph (a).

 

(c)If any day during an Interest Period is not a Swingline Business Day, the rate of interest on a Swingline Loan on that day will be the rate applicable to the immediately preceding Swingline Business Day.

 

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(d)Each Borrower shall pay accrued interest on each Swingline Loan made to it on the last day of its Interest Period.

 

12.4Payment of interest

 

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six-monthly intervals after the first day of the Interest Period).

 

12.5Margin adjustments – rating

 

(a)The initial Margin is:

 

(i)for Facility A: 1.45% per annum; and

 

(ii)for Facility B: 0.45% per annum.

 

(b)Subject to Clause 12.6 (Margin adjustments - sustainability) and the other provisions of this Clause 12.5, the Margin will be calculated by reference to the table below and the information set out in the most recent Margin Certificate delivered to the Agent pursuant to paragraph (c) below:

 

Rating Facility A
Margin % per
annum		 Facility B
Margin % per
annum
Moody's
Investor
Services
Limited		 Fitch Ratings
Ltd		 Standard &
Poor's Rating
Services		    
         
A3 or higher A- or higher A- or higher 1.30 0.30
         
Baa1 BBB+ BBB+ 1.35 0.35
         
Baa2 BBB BBB 1.45 0.45
         
Baa3 BBB- BBB- 1.60 0.60
         
Ba1 or lower BB+ or lower BB+ or lower 1.85 0.85

 

(c)The Obligors' Agent must notify the Agent of any notification to it by a Rating Agency of a change in its Rating by delivering a Margin Certificate promptly and in any case, within five Business Days, after the relevant change in Rating.

 

(d)Within three Business Days of the Closing Date, the Obligors' Agent must notify the Agent of the Ratings then given by each Rating Agency, unless those Ratings are such that would (under the provisions of this Clause 12.5) result in a Margin of 1.45% per annum for Facility A and 0.45% per annum for Facility B.

 

(e)The Parent (or, if applicable, an Affiliate of the Parent) shall be under no obligation to obtain and/or maintain a Rating from all of the Rating Agencies.

 

(f)Subject to paragraph (g) below, for any period during which the equivalent Ratings given by the Rating Agencies differ, the applicable Margin will be determined by reference to the average applicable percentage rate per annum of the Margins applicable to the relevant Ratings as set out in the table above.

 

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(g)If three Ratings are maintained by the Parent (or, if applicable, an Affiliate of the Parent) from the three Rating Agencies, and two of the Rating Agencies give a rating of Baa3/BBB- or higher (an IG Rating) and the other gives a rating of Ba1/BB+ or below, then the Margin shall be determined only by reference to the two IG Ratings.

 

(h)If only one Rating Agency provides a Rating, the Margin shall be calculated on the basis of that Rating.

 

(i)For so long as:

 

(i)the Obligors' Agent is in default of its obligations under this Agreement to notify the Agent of any change in its Rating under paragraph (c) above;

 

(ii)an Event of Default is continuing; or

 

(iii)no Rating is obtained or maintained from any of the Rating Agencies,

 

the Margin shall be calculated on the basis of a Rating of Ba1/BB+ or lower.

 

(j)Any increase or decrease in the Margin for a Loan shall take effect on the date which is three Business Days after receipt by the Agent of the notification delivered pursuant to paragraph (c) above.

 

12.6Margin adjustments - sustainability

 

(a)Until an SLL Commencement Date has occurred:

 

(i)no definitions, terms, provisions and mechanisms relating to the adjustment of the Margin as contemplated by this Clause 12.6 shall apply;

 

(ii)the Margin shall be calculated on the basis that no adjustment to the Margin under this Clause 12.6 is effected; and

 

(iii)no member of the Group shall be required to deliver any Sustainability Compliance Certificate or Verification Report.

 

(b)Following receipt of an SLL Commencement Form from the Obligors' Agent:

 

(i)the Agent shall promptly notify the Facility B Lenders;

 

(ii)each Facility B Lender (acting reasonably) may decide whether to accept the SLL Commencement Form by the date falling 15 Business Days from the date of the SLL Commencement Form (the Acceptance Date); and

 

(iii)if any Facility B Lender fails to respond to the SLL Commencement Form by the Acceptance Date (or such longer time period as the Obligors' Agent and the Agent (acting on the instructions of the Majority Facility B Lenders) may agree):

 

(A)its Commitment shall not be included for the purpose of the Total Facility B Commitments when ascertaining whether the agreement of the Majority Facility B Lenders has been obtained to accept the SLL Commencement Form; and

 

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(B)its status as a Facility B Lender shall be disregarded for the purpose of ascertaining whether the agreement of the Majority Facility B Lenders has been obtained to accept the SLL Commencement Form.

 

(c)The Agent shall promptly notify the Obligors' Agent of any acceptances, rejections, non-responses and any other replies (including the names of any Lenders) in respect of the SLL Commencement Form by the Facility B Lenders.

 

(d)Subject to paragraph (b)(iii) above, if the Agent has received acceptances in respect of the SLL Commencement Form from the Majority Facility B Lenders on or prior to the Acceptance Date:

 

(i)the Agent shall promptly (and within three Business Days of the Acceptance Date) countersign the SLL Commencement Form and circulate the countersigned SLL Commencement Form to the Obligors' Agent and the Facility B Lenders;

 

(ii)the proposals included in the SLL Commencement Form shall become effective on the date which the Agent has countersigned the SLL Commencement Form provided that the Obligors' Agent has confirmed that no Event of Default has occurred and is continuing on the SLL Commencement Date; and

 

(iii)subject to Clause 25.2 (Sustainability Publicity), on and from the SLL Commencement Date, the Parent and the other members of the Group shall be entitled to refer to Facility B as "sustainability-linked" in public communications.

 

(e)Subject to paragraph (b)(iii) above, if, following the Acceptance Date, the SLL Commencement Form has not been approved by the Majority Facility B Lenders, the Obligors' Agent and the Facility B Lenders shall enter into negotiations in good faith to revise and agree a revised SLL Commencement Form (including KPIs and SPTs) and the SLL Longstop Date shall automatically be extended to any date agreed between the Obligors' Agent and the Agent (acting on the instructions of the Majority Facility B Lenders). If a revised SLL Commencement Form is approved by the Obligors' Agent and the Agent (acting on the instructions of the Majority Facility B Lenders) then it shall take effect as the SLL Commencement Form, and sub-paragraphs (i) to (iii) of paragraph (d) above shall apply to it.

 

(f)Subject to Clause 25.1 (Declassification Event) and the other paragraphs of this Clause 12.6, following:

 

(i)the occurrence of the SLL Commencement Date, and

 

(ii)the receipt by the Agent of the Sustainability Compliance Certificate in respect of a SLL Reference Period in accordance with Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report), the Margin applicable to each Loan made available under the SLL Facility shall be adjusted (a Sustainability Margin Adjustment) (or not adjusted, as the case may be) to the applicable rate by reference to the table set out in the SLL Commencement Form, and the number of SPTs that the Sustainability Compliance Certificate for that SLL Reference Period certifies have been met.

 

(g)Subject to paragraph (j) below, any Sustainability Margin Adjustment in respect of the Margin for a Loan shall take effect on the date which falls three Business Days after receipt by the Agent of the Sustainability Compliance Certificate for the most recently completed SLL Reference Period pursuant to Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report) (the Sustainability Margin Adjustment Date).

 

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(h)Subject to paragraph (j) below and to Clause 23.4 (Sustainability Compliance Certificate Inaccuracy or Delay), only one Sustainability Compliance Certificate may be delivered in respect of any SLL Reference Period, and any Sustainability Margin Adjustment made by reference to that SLL Reference Period shall only apply until:

 

(i)the date on which the Sustainability Compliance Certificate is required to be delivered for the following SLL Reference Period pursuant to Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report); or

 

(ii)where a Sustainability Compliance Certificate has been delivered for the following SLL Reference Period pursuant to Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report), the relevant Sustainability Margin Adjustment Date.

 

(i)The calculation of any Sustainability Margin Adjustment which is applied to the Margin in respect of any SLL Reference Period shall disregard any Sustainability Margin Adjustment which was applied to the Margin in respect of the preceding SLL Reference Period.

 

(j)If a revised or delayed Sustainability Compliance Certificate is received by the Agent in respect of any SLL Reference Period pursuant to Clause 23.4 (Sustainability Compliance Certificate Inaccuracy or Delay), any Sustainability Margin Adjustment which is applied to the Margin for a Loan by reference to that SLL Reference Period shall:

 

(i)be recalculated in accordance with the revised Sustainability Compliance Certificate; and

 

(ii)take effect on the date which falls three Business Days after receipt by the Agent of the revised or delayed Sustainability Compliance Certificate for the relevant SLL Reference Period pursuant to Clause 23.4 (Sustainability Compliance Certificate Inaccuracy or Delay).

 

(k)If a revised or delayed Sustainability Compliance Certificate received by the Agent pursuant to Clause 23.4 (Sustainability Compliance Certificate Inaccuracy or Delay) shows that a higher Margin should have applied during a certain period, then the amount of interest payment on the following interest payment date shall be adjusted as necessary to put the relevant Borrower, the Agent and the Facility B Lenders in the position they would have been in had the appropriate rate of the Margin applied retrospectively during such period (provided that such adjustments shall only apply to the Loans (and the respective Commitments) of those Facility B Lenders who were participating in the relevant SLL Facility both at the time to which the adjustments relate and the time when the adjustments are actually made).

 

(l)For so long as a Sustainability Breach is continuing the SPTs will, for the purposes of this Clause 12.6, be deemed not to have been met for the applicable SLL Reference Period.

 

(m)In determining the applicable Margin in accordance with the Sustainability Provisions, at no point will the Sustainability Margin Adjustment exceed 0.05% per annum and accordingly, the applicable Margin will never be increased by more than 0.05% per annum in total and/or decreased by more than 0.05% per annum in total as a result of the Sustainability Provisions.

 

(n)For the avoidance of doubt, a Sustainability Margin Adjustment shall only apply after the occurrence of the SLL Commencement Date and only to a Loan made available under the SLL Facility.

 

12.7Default interest

 

(a)If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 1% per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 12.7 shall be immediately payable by the Obligor on demand by the Agent.

 

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(b)If any overdue amount consists of all or part of a Term Rate Loan and which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

(i)the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

(ii)the rate of interest applying to the overdue amount during that first Interest Period shall be 1 % higher than the rate which would have applied if the overdue amount had not become due.

 

(c)Interest and default interest (in each case, if unpaid) will be compounded with the principal amount of the Loans or the overdue amount (as applicable) at the end of each Interest Period applicable to that amount but will remain immediately due and payable.

 

12.8Notifications of rates of interest

 

(a)The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest relating to a Term Rate Loan under this Agreement.

 

(b)The Agent shall, no later than three RFR Banking Days before any Compounded Rate Interest Payment is payable, notify:

 

(i)the relevant Borrower of that Compounded Rate Interest Payment;

 

(ii)each relevant Lender of the proportion of that Compounded Rate Interest Payment which relates to that Lender's participation in the relevant Compounded Rate Loan; and

 

(iii)the relevant Lenders and the relevant Borrower of:

 

(A)each applicable rate of interest relating to the determination of that Compounded Rate Interest Payment; and

 

(B)to the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant Compounded Rate Loan.

 

This paragraph (b) shall not apply to any Compounded Rate Interest Payment determined pursuant to Clause 14.4 (Cost of funds).

 

(c)The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

 

(d)The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest relating to a Compounded Rate Loan to which Clause 14.4 (Cost of funds) applies.

 

(e)This Clause 12.8 shall not require the Agent to make any notification to any Party on a day which is not a Business Day.

 

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12.9Criminal Interest (Canada)

 

If any provision of this Agreement would oblige a Borrower to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited by applicable law or would result in a receipt by that Lender of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Lender of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows:

 

(a)first, by reducing the amount or rate of interest required to be paid to the affected Lender; and

 

(b)thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of section 347 of the Criminal Code (Canada).

 

13.Interest Periods

 

13.1Selection of Interest Periods

 

(a)A Borrower (or the Obligors' Agent on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice.

 

(b)Each Selection Notice for a Facility A Loan is irrevocable and must be delivered to the Agent by the Borrower (or the Obligors' Agent on behalf of a Borrower) to which that Facility A Loan was made not later than the Specified Time.

 

(c)If a Borrower (or the Obligors' Agent) fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will, subject to Clause 13.2 (Changes to Interest Periods), be the period specified in the applicable Reference Rate Terms.

 

(d)Subject to this Clause 13, a Borrower (or the Obligors' Agent) may select an Interest Period of:

 

(i)any period specified in the applicable Reference Rate Terms;

 

(ii)any duration of more than one week but less than six Months to facilitate the implementation of, and payments under, any hedging transaction entered into by a member of the Group (including to ensure that the last day of such Interest Period matches any relevant payment date under any hedging transaction entered into by a member of the Group); or

 

(iii)any other period agreed between the Obligors' Agent, the Agent and all the Lenders in relation to the relevant Loan.

 

(e)An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its Facility. If the Termination Date has been extended pursuant to Clause 9.4 (Extension of Termination Date), the Interest Period in respect of any Loan that is outstanding prior to the Initial Termination Date or, if applicable, the First Extension Termination Date, may not extend beyond the Initial Termination Date or, if applicable, the First Extension Termination Date if any Lender in respect of that Loan has not accepted the relevant Extension Request.

 

(f)Each Interest Period for a Facility A Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.

 

(g)A Facility B Loan has one Interest Period only.

 

(h)No Interest Period shall be longer than six Months.

 

(i)The length of an Interest Period of a Term Rate Loan shall not be affected by that Term Rate Loan becoming a "Compounded Rate Loan" for that Interest Period pursuant to Clause 14.1 (Interest calculation if no Primary Term Rate).

 

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13.2Changes to Interest Periods

 

(a)Prior to the earlier of:

 

(i)the Agent determining the interest rate for the Facility A Loan; and

 

(ii)the first day of an Interest Period for the Facility A Loan,

 

the Agent may shorten an Interest Period for the Facility A Loan to ensure that the Facility A Loan has an Interest Period ending on the relevant Facility A Repayment Date.

 

(b)If the Agent makes any of the changes to an Interest Period referred to in this Clause 13.2, it shall promptly notify the Obligors' Agent and the Lenders.

 

13.3Interest Periods: Swingline Loans

 

(a)Each Swingline Loan has one Interest Period only.

 

(b)The Interest Period for a Swingline Loan must be selected in the relevant Utilisation Request.

 

13.4Non-Business Days

 

Any rules specified as "Business Day Conventions" in the applicable Reference Rate Terms for a Loan or Unpaid Sum shall apply to each Interest Period for that Loan or Unpaid Sum.

 

14.Changes to the Calculation of Interest

 

14.1Interest calculation if no Primary Term Rate

 

(a)Interpolated Primary Term Rate: If no Primary Term Rate is available for the Interest Period of a Term Rate Loan, the applicable Term Reference Rate shall be the Interpolated Primary Term Rate for a period equal in length to the Interest Period of that Loan.

 

(b)Shortened Interest Period: If paragraph (a) above applies but it is not possible to calculate the Interpolated Primary Term Rate, the Interest Period of the Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable Term Reference Rate shall be determined pursuant to the definition of "Term Reference Rate".

 

(c)Shortened Interest Period and Historic Primary Term Rate: If paragraph (b) above applies but no Primary Term Rate is available for the Interest Period of that Loan and it is not possible to calculate the Interpolated Primary Term Rate, the applicable Term Reference Rate shall be the Historic Primary Term Rate for that Loan.

 

(d)Shortened Interest Period and Interpolated Historic Primary Term Rate: If paragraph (c) above applies but no Historic Primary Term Rate is available for the Interest Period of the Loan, the applicable Term Reference Rate shall be the Interpolated Historic Primary Term Rate for a period equal in length to the Interest Period of that Loan.

 

(e)Alternative Term Rate: If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Primary Term Rate, the Interest Period of that Loan shall, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and the applicable Term Reference Rate shall be the aggregate of:

 

(i)the Alternative Term Rate as of the Quotation Time for a period equal in length to the Interest Period of that Loan; and

 

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(ii)any applicable Alternative Term Rate CAS.

 

(f)Interpolated Alternative Term Rate: If paragraph (e) above applies but no Alternative Term Rate is available for the Interest Period of that Loan, the applicable Term Reference Rate shall be the aggregate of:

 

(i)the Interpolated Alternative Term Rate for a period equal in length to the Interest Period of that Loan; and

 

(ii)any applicable Alternative Term Rate CAS.

 

(g)Compounded Reference Rate or cost of funds: If paragraph (f) above applies but it is not possible to calculate the Interpolated Alternative Term Rate then:

 

(i)if "Compounded Reference Rate will apply as a fallback" is specified in the Reference Rate Terms for that Loan and there are Reference Rate Terms applicable to Compounded Rate Loans in the relevant currency:

 

(A)there shall be no Term Reference Rate for that Loan for that Interest Period and Clause 12.1 (Calculation of interest – Term Rate Loans) will not apply to that Loan for that Interest Period; and

 

(B)that Loan shall be a "Compounded Rate Loan" for that Interest Period and Clause 12.2 (Calculation of interest – Compounded Rate Loans) shall apply to that Loan for that Interest Period; or

 

(ii)if "Cost of funds will apply as a fallback" is specified in the Reference Rate Terms for that Loan, Clause 14.4 (Cost of funds) shall apply to that Loan for that Interest Period.

 

14.2Interest calculation if no RFR or Central Bank Rate

 

If:

 

(a)there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Compounded Rate Loan; and

 

(b)"Cost of funds will apply as a fallback" is specified in the Reference Rate Terms for that Loan,

 

Clause 14.4 (Cost of funds) shall apply to that Loan for that Interest Period.

 

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14.3Market disruption

 

If:

 

(a)a Market Disruption Rate is specified in the Reference Rate Terms for a Loan; and

 

(b)before the Reporting Time for that Loan the Agent receives notifications from a Lender or Lenders (whose participations in that Loan exceed 40 % of that Loan) that its cost of funds relating to its participation in that Loan would be in excess of that Market Disruption Rate,

 

then Clause 14.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

 

14.4Cost of funds

 

(a)If this Clause 14.4 applies to a Loan for an Interest Period neither Clause 12.1 (Calculation of interest – Term Rate Loans) nor Clause 12.2 (Calculation of interest – Compounded Rate Loans) shall apply to that Loan for that Interest Period and the rate of interest on each Lender's share of that Loan for that Interest Period shall be the percentage rate per annum which is the sum of:

 

(i)the applicable Margin; and

 

(ii)the weighted average of the rates notified to the Agent by each Lender as soon as practicable and in any event by the Reporting Time for that Loan, to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan.

 

(b)If this Clause 14.4 applies and the Agent or the Obligors' Agent so requires, the Agent and the Obligors' Agent shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

 

(c)Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Obligors' Agent, be binding on all Parties.

 

(d)If this Clause 14.4 applies pursuant to Clause 14.3 (Market disruption) and:

 

(i)a Lender's Funding Rate is less than the relevant Market Disruption Rate; or

 

(ii)a Lender does not notify a rate to the Agent by the relevant Reporting Time,

 

that Lender's cost of funds relating to its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the Market Disruption Rate for that Loan.

 

(e)Subject to paragraph (d) above, if this Clause 14.4 applies but any Lender does not notify a rate to the Agent by the Reporting Time for the relevant Loan the rate of interest shall be calculated on the basis of the rates notified by the remaining Lenders.

 

(f)If this Clause 14.4 applies the Agent shall, as soon as is practicable, notify the Obligors' Agent.

 

14.5Break Costs

 

(a)If an amount or method of calculation is specified as Break Costs in the Reference Rate Terms for a Loan or Unpaid Sum, each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs (if any) attributable to all or any part of that Loan or Unpaid Sum being paid by that Borrower on a day prior to the last day of an Interest Period for that Loan or Unpaid Sum.

 

(b)Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in respect of which they become, or may become, payable.

 

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15.Fees

 

15.1Commitment fee

 

(a)The Obligors' Agent shall pay (or procure that there is paid) to the Agent (for the account of each Lender) a fee in the Base Currency computed at the following rates:

 

(i)in respect of Facility A:

 

 

(A)20% of the applicable Margin on that Lender's Available Commitment under Facility A for the period from (and excluding) the date falling 60 days after the date of this Agreement to (and including) the date falling 90 days after the date of this Agreement; and

 

(B)30% of the applicable Margin on that Lender's Available Commitment under Facility A for the period from (and excluding) the date falling 90 days after the date of this Agreement to (and including) the last day of the Availability Period applicable to Facility A; and

 

(ii)provided that the Closing Date has occurred, in respect of Facility B, 35% of the applicable Margin on that Lender's Available Commitment under Facility B for the period from and including the date on which (as indicated by any notice of cancellation provided under Part 1 of Schedule 2 (Conditions Precedent)) the Smurfit Kappa 2019 RCF will be cancelled in full (or, if no such notice is provided, the Closing Date).

 

(b)The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the relevant Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.

 

(c)No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

 

15.2Coordination fee

 

Subject to Clause 15.7 (Fees payable upon occurrence of Closing Date), the Obligors' Agent shall pay (or procure the payment by another member of the Group) to the Coordinators a coordination fee in the amount and at the times agreed in a Fee Letter.

 

15.3Arrangement fee

 

Subject to Clause 15.7 (Fees payable upon occurrence of Closing Date), the Obligors' Agent shall pay (or procure the payment by another member of the Group) to the Lenders an arrangement fee in the amount and at the times agreed in a Fee Letter.

 

15.4Utilisation fee

 

(a)The Obligors' Agent shall pay (or procure the payment by another member of the Group) to the Agent for each Lender under a Facility B Loan, a utilisation fee computed at the rate of:

 

(i)for each day on which the aggregate amount of Facility B Loans equals or exceeds 33⅓% of the Total Facility B Commitments (as at the date of this Agreement) but is less than 66⅔% of the Total Facility B Commitments (as at the date of this Agreement), 0.20% per annum on Facility B Loans; and

 

(ii)for each day on which the aggregate amount of the Facility B Loans equals or exceeds 66⅔% of the Total Facility B Commitments (as at the date of this Agreement), 0.40% per annum on Facility B Loans.

 

(b)The utilisation fee is payable on the amount of each Lender's share in the Facility B Loans.

 

(c)The accrued utilisation fee is payable on the last day of each successive period of three Months which ends during the Availability Period applicable to Facility B, on the last day of the Availability Period and, if a Lender's Facility B Commitment is cancelled in full and its participation in the Facility B Loans is prepaid or repaid in full, on the date of such cancellation and repayment or prepayment.

 

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15.5Agency fee

 

Subject to Clause 15.7 (Fees payable upon occurrence of Closing Date), the Obligors' Agent shall pay (or procure the payment by another member of the Group) to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

15.6Interest, commission and fees on Ancillary Facilities

 

The rate and time of payment of interest, commission, fees and any other remuneration in respect of each Ancillary Facility shall be determined by agreement between the relevant Ancillary Lender and the Borrower (or the Obligors' Agent on its behalf) of that Ancillary Facility based upon normal market rates and terms.

 

15.7Fees payable upon occurrence of Closing Date

 

(a)Notwithstanding any other provision of any Finance Document, no fees, commissions, costs or expenses under any Finance Document shall be payable if the Closing Date does not occur, other than:

 

(i)any coordination fee required to be paid pursuant to the terms of a mandate letter dated 3 May 2024 between the Agent, Smurfit Kappa Treasury and the Parent;

 

(ii)the commitment fee in respect of Facility A specified in Clause 15.1 (Commitment fee) (to the extent payable under that Clause); and

 

(iii)reasonable and properly incurred legal fees and expenses in connection with the drafting and negotiating of the Finance Documents, subject to any separate arrangements agreed between the Coordinators and the Obligors' Agent.

 

(b)Any fees stated in a Fee Letter to be payable on the Closing Date may, notwithstanding any contrary statement in the Fee Letter, be paid within five Business Days after the Closing Date.

 

16.Tax Gross Up and Indemnities

 

16.1Definitions

 

(a)In this Agreement:

 

Borrower DTTP Filing means an HM Revenue & Customs' Form DTTP2 or DTTP2A duly completed and filed by the relevant Borrower, which:

 

(i)where it relates to a UK Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender's name in Part 2 or Part 3 of Schedule 1 (The Original Parties), and

 

(A)where the UK Borrower is an Original Borrower, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or

 

(B)where the UK Borrower is an Additional Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that UK Borrower becomes an Additional Borrower; or

 

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(ii)where it relates to a UK Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender; and

 

(A)where the UK Borrower is a UK Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or

 

(B)where the Borrower is not a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower.

 

Canadian Obligor means an Obligor incorporated or tax resident in Canada.

 

Canadian Qualifying Lender means a Lender which:

 

(i)fulfils the conditions imposed by the law of Canada in order for any payment of interest not to be subject to (or as the case may be, to be exempt from) any Tax Deduction; or

 

(ii)is a Canadian Treaty Lender.

 

Canadian Treaty Lender means a Lender which:

 

(i)is treated as a resident of a Canadian Treaty State for the purposes of the relevant Treaty;

 

(ii)does not carry on a business in Canada through a permanent establishment, fixed place of business or a permanent representative with which that Lender's participation in that Loan is effectively connected; and

 

(iii)meets all other conditions in the relevant Treaty for full exemption from Tax imposed by Canada on interest, subject to the completion of procedural formalities.

 

Canadian Treaty State means a jurisdiction having a Treaty with Canada which makes provision for full exemption from tax imposed by Canada on interest.

 

Dutch Obligor means an Obligor incorporated, established or tax resident in The Netherlands.

 

Dutch Qualifying Lender means, in relation to a payment by or in respect of a Dutch Obligor under a Finance Document, a Lender which is:

 

(i)entitled to interest payable to that Lender in respect of an advance under a Finance Document and is a Lender to whom such payment of interest paid by a Dutch Obligor can be made without any Tax Deduction being imposed under the laws of The Netherlands; or

 

(ii)a Dutch Treaty Lender.

 

Dutch Treaty Lender means, in relation to a payment of interest by or in respect of a Dutch Obligor under a Finance Document, a Lender which:

 

(i)is treated as a resident of a Dutch Treaty State for the purposes of the relevant Treaty;

 

(ii)does not carry on a business in The Netherlands through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and

 

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(iii)fulfils all other conditions which must be fulfilled in order to benefit from full exemption under the relevant Treaty from Tax imposed by The Netherlands on interest payable to that Lender in respect of an advance under a Finance Document, including for the avoidance of doubt the completion of any necessary procedural formalities in respect of the implementation regulations of the Dutch Withholding Tax Act 2021 (uitvoeringsvoorschriften bronbelasting).

 

Dutch Treaty State means a jurisdiction having a Treaty with The Netherlands which makes provision for a full exemption from Tax imposed by The Netherlands on interest.

 

Irish Borrower means any Borrower incorporated under Irish law, resident for tax purposes in Ireland or operating in Ireland through a branch or agency with which this Agreement is connected.

 

Irish Obligor means an Obligor incorporated, established or resident for the purposes of tax in Ireland under Irish law.

 

Irish Qualifying Lender means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

(i)a bank within the meaning of section 246(1) of the TCA that is carrying on a bona fide banking business in Ireland for the purposes of section 246(3)(a) of the TCA; or

 

(ii)(A) a body corporate that is resident for the purposes of tax in a member state of the European Union (other than Ireland) or in a territory with which Ireland has concluded a Treaty that is in effect by virtue of section 826(1) of the TCA or in a territory with which Ireland has signed a Treaty which will come into effect once all the ratification procedures set out in section 826(1) of the TCA have been completed (residence for these purposes to be determined in accordance with the laws of the territory of which the Lender claims to be resident) where that member state or territory imposes a tax that generally applies to interest receivable in that member state or territory by companies from sources outside that member state or territory; or

 

(B)a body corporate where interest payable in respect of an advance:

 

(1)is exempted from the charge to income tax under a Treaty that is in effect by virtue of section 826(1) of the TCA; or

 

(2)would be exempted from the charge to income tax under a Treaty if such Treaty was in effect by virtue of Section 826(1) of the TCA;

 

(C)a US company, provided the US company is incorporated in the US and is taxed in the US on its worldwide income; or

 

(D)a US limited liability company (LLC) where, provided the ultimate recipients of the interest payable to that LLC under a Finance Document would, if they were themselves Lenders, be Irish Qualifying Lenders within paragraph (A), (B) or (C) above of this definition and the business conducted through the LLC is so structured for non-tax commercial reasons and not for tax avoidance purposes;

 

provided in each case at paragraph (A), (B), (C) or (D) the Lender is not (or, in the case of (D), the ultimate recipient of the interest are not) carrying on a trade or business in Ireland through an agency or branch with which the interest payment is connected; or

 

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(iii)a body corporate:

 

(A)which advances money in the ordinary course of a trade which includes the lending of money; and

 

(B)in whose hands any interest payable in respect of monies so advanced is taken into account in computing the trading income of the company; and

 

(C)which has complied with all of the provisions of Section 246(5)(a) of the TCA as amended, including making the appropriate notifications thereunder; or

 

(iv)a qualifying company within the meaning of Section 110 of the TCA;

 

(v)an investment undertaking within the meaning of Section 739B of the TCA; or

 

(vi)an Irish Treaty Lender.

 

Irish Treaty Lender means a Lender (other than a Lender falling within paragraph (ii) (A), (B), (C) or (D) of the definition of Irish Qualifying Lender) which:

 

(i)is treated as a resident of an Irish Treaty State for the purposes of the relevant Treaty;

 

(ii)does not carry on a business in Ireland through a permanent establishment (as defined in the relevant Treaty), with which that Lender's participation in that Loan is effectively connected; and

 

(iii)meets all other conditions in the relevant Treaty for full exemption from Tax imposed by Ireland on interest, subject to the completion of procedural formalities.

 

Irish Treaty State means a jurisdiction having a Treaty with Ireland which is in effect and makes provision for full exemption from Tax imposed by Ireland on interest.

 

Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

 

Tax Confirmation means a written confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

 

(i)a company resident in the United Kingdom for United Kingdom tax purposes;

 

(ii)a partnership each member of which is;

 

(A)a company so resident in the United Kingdom; or

 

(B)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(iii)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

 

Tax Credit means a credit against, relief from, rebate of, or repayment or remission of any Tax.

 

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Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

 

Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 16.2 (Tax gross-up) or a payment under Clause 16.3 (Tax indemnity).

 

TCA means the Taxes Consolidation Act 1997 of Ireland.

 

Treaty means a double taxation treaty or agreement providing for full exemption from Tax imposed on interest.

 

Treaty Lender means:

 

(i)a Canadian Treaty Lender;

 

(ii)a Dutch Treaty Lender;

 

(iii)an Irish Treaty Lender; or

 

(iv)a UK Treaty Lender.

 

UK Borrower means any Borrower created or organised in the UK.

 

UK Non-Bank Lender means a Lender which is not an Original Lender and which gives a Tax Confirmation in the documentation which it executes on becoming a Party as a Lender.

 

UK Obligor means an Obligor incorporated or tax resident in the United Kingdom.

 

UK Qualifying Lender means:

 

(i)a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

(A)a Lender:

 

(1)which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

 

(2)in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

(B)a Lender which is:

 

(1)a company resident in the United Kingdom for United Kingdom tax purposes;

 

(2)a partnership each member of which is:

 

(i)a company so resident in the United Kingdom; or

 

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(ii)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;

 

(3)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

 

(C)a UK Treaty Lender; or

 

(ii)a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.

 

UK Treaty Lender means a Lender which:

 

(i)is treated as a resident of a UK Treaty State for the purposes of the Treaty;

 

(ii)does not carry on a business in the United Kingdom through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and

 

(iii)meets all other conditions in the relevant Treaty for full exemption from Tax imposed by the UK on interest, subject to the completion of procedural formalities.

 

UK Treaty State means a jurisdiction having a Treaty with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

 

US Borrower means any Borrower created or organised in the US.

 

US Guarantor means a Guarantor created or organised in the US.

 

US Obligor means an Obligor created or organised in the US.

 

US Qualifying Lender means, in relation to payments to be made by a US Borrower, or by a Guarantor on behalf a US Borrower, a Lender that is:

 

(i)a United States person within the meaning of the IRS Code that supplies to the Agent for transmission to the US Borrower or, as the case may be, the Guarantor making payments on behalf of such US Borrower, two original copies of IRS Form W-9 (or any successor form) either directly or under cover of IRS Form W-8IMY (or any successor form) certifying its status as a United States person that is exempt from United States back-up withholding Taxes;

 

(ii)eligible for the benefits of a tax treaty with the United States and that supplies to the Agent for transmission to the US Borrower or, as the case may be, the Guarantor making payments on behalf of such US Borrower, two original copies of IRS Form W-8BEN-E (or any successor form) either directly or under cover of IRS Form W-8IMY (or any successor form) certifying its entitlement to receive such payments without any deduction or withholding in respect of United States federal income Taxes under such tax treaty;

 

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(iii)entitled to receive such payments without deduction or withholding of any United States federal income Taxes as a result of such payments being effectively connected with the conduct by such Lender of a trade or business within the United States and that supplies to the Agent for transmission to the US Borrower or, as the case may be, the Guarantor making payments on behalf of such US Borrower, two original copies of IRS Form W-8ECI (or any successor form) either directly or under cover of IRS Form W-8IMY (or any successor form) certifying that such payments are effectively connected with the conduct by that Lender of a trade or business within the United States;

 

(iv)entitled to receive such payments without deduction or withholding of any United States federal income Taxes under the "portfolio interest" exemption under Section 881(c) of the IRS Code and that supplies to the Agent for transmission to the US Borrower, or as the case may be, the Guarantor making payments on behalf of such US Borrower, making such payments two original copies of IRS Form W-8BEN-E (or any successor form) either directly or under cover of IRS Form W-8IMY (or any successor form), along with a statement certifying that such Lender (A) is not a "bank" for purposes of Section 881(c)(3)(A) of the IRS Code, (B) is not a "10% shareholder" of the relevant US Borrower within the meaning of Section 881(c)(3)(B) of the IRS Code and (C) is not a "controlled foreign corporation" described in Section 881(c)(3)(C) of the IRS Code with respect to which the relevant US Borrower is a "United States shareholder"; or

 

(v)entitled to receive such payments without deduction or withholding of any United States federal income Tax under another applicable exemption and that supplies to the Agent for transmission to the US Borrower or, as the case may be, the Guarantor making payments on behalf of such US Borrower, two original copies of such other applicable form prescribed by the IRS certifying as to such Lender's entitlement to exemption from United States withholding Tax with respect to such payments.

 

For these purposes, in the case of a Lender that is not treated as the beneficial owner of the payment (or a portion thereof) under the IRS Code, the term "Lender" shall mean the person who is so treated as the beneficial owner of the payment (or portion thereof). In addition, in order to be a US Qualifying Lender, such Lender must (A) supply the applicable forms described above to the Agent as soon as practicable after the date the relevant US Borrower becomes a Party (and in any event no later than ten Business Days thereafter), and from time to time thereafter upon the reasonable request of the US Borrower or Agent and (B) promptly notify the Agent and the US Borrower at any time it determines that it is no longer in a position to provide any previously delivered form to the Agent (or any other form or certification adopted by the US taxing authorities for such purpose).

 

(b)Unless a contrary indication appears, in this Clause 16 a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.

 

16.2Tax gross-up

 

(a)Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

(b)If an Obligor or a Lender becomes aware that an Obligor is required by law to make a Tax Deduction (or that there is a change in the rate or the basis of any Tax Deduction) it shall as soon as is reasonably practicable notify the Agent of such requirement or change. If the Agent receives such notification from a Lender or an Obligor it shall promptly notify the affected Parties.

 

(c)If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

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(d)If an Obligor is required by law to make a Tax Deduction that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

(e)Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction or payment shall, if requested by the relevant Finance Party, deliver to the Agent for that Finance Party, an original receipt or certified copy thereof, or, if such original receipt or certified copy thereof is unavailable, evidence satisfactory to that Finance Party (acting reasonably) that the Tax Deduction has been made or (as applicable) any payment which is required to be made in connection with any Tax Deduction has been paid to the relevant taxing authority.

 

(f)An Obligor is not required to make any increased payment to a Lender under paragraph (c) above:

 

(i)by reason of a Tax Deduction on account of Tax imposed by Canada if the relevant payment is in the respect of a Loan to a Canadian Borrower and at the time that the payment falls due:

 

(A)the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Canadian Qualifying Lender, but on that date that Lender is not or has ceased to be a Canadian Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration or application of) any law or Canadian Treaty or any published practice or published concession of any relevant taxing authority; or

 

(B)that Lender is a Canadian Treaty Lender and the Obligor is able to demonstrate that that payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Clause 16.5 (Filings);

 

(ii)by reason of a Tax Deduction on account of Tax imposed by The Netherlands if the relevant payment is in the respect of a Loan to a Dutch Obligor and at the time that the payment falls due:

 

(A)the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Dutch Qualifying Lender, but on that date that Lender is not or has ceased to be a Dutch Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration or application of) any law or Dutch Treaty or any published practice or published concession of any relevant taxing authority; or

 

(B)that Lender is a Dutch Treaty Lender and the Dutch Obligor is able to demonstrate that that payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Clause 16.5 (Filings).

 

(iii)by reason of a Tax Deduction on account of Tax imposed by Ireland if the relevant payment is in the respect of a Loan to an Irish Borrower and at the time that the payment falls due:

 

(A)the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been an Irish Qualifying Lender, but on that date that Lender is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

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(B)that Lender is an Irish Treaty Lender and the Obligor is able to demonstrate that that payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Clause 16.5 (Filings); or

 

(iv)by reason of a Tax Deduction on account of Tax imposed by the UK if the relevant payment is in respect of a Loan to a UK Borrower and at the time the payment falls due:

 

(A)the payment could have been made to the relevant Lender without a Tax Deduction imposed by the UK if the Lender had been a UK Qualifying Lender, but on that date that Lender is not or has ceased to be a UK Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or UK Treaty or any published practice or published concession of any relevant taxing authority; or

 

(B)the relevant Lender is a UK Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of UK Qualifying Lender and:

 

I.an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a Direction) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment a certified copy of the Direction; and

 

II.the payment could have been made to the Lender without any Tax Deduction imposed by the UK if that Direction had not been made; or

 

(C)the relevant Lender is a UK Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of UK Qualifying Lender and:

 

I.the relevant Lender has not given a Tax Confirmation to the Obligor; and

 

II.the payment could have been made to the Lender without any Tax Deduction imposed by the UK if the Lender had given a Tax Confirmation to the Obligor, on the basis that the Tax Confirmation would have enabled the Obligor to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

 

(D)that Lender is a UK Treaty Lender and the Obligor is able to demonstrate that that payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Clauses 16.2(g), 16.2(h) (Tax gross-up) and 16.5 (Filings);

 

(v)by reason of a Tax Deduction on account of Tax imposed by the US if the relevant payment is in respect of a Loan to an US Borrower and at the time that payment falls due, the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a US Qualifying Lender, but on that date that Lender is not or has ceased to be a US Qualifying Lender other than as a result of any change in (or in the official interpretation, administration or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority after the date (A) it became a Lender under this Agreement or (B) changes its office for receiving payments under this Agreement.

 

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(g)

 

(i)Subject to paragraph (ii) below, a UK Treaty Lender and each Obligor which makes a payment to which that UK Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

 

(ii)

 

(A)A UK Treaty Lender which is an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Part 2 or Part 3 (as applicable) of Schedule 1 (The Original Parties); and

 

(B)a UK Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender,

 

and, having done so, that Lender shall be under no obligation pursuant to paragraph (i) above.

 

(h)If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii) above and:

 

(i)a UK Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or

 

(ii)a UK Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

 

(A)that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or

 

(B)HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing; or

 

(C)HM Revenue & Customs has given the Borrower authority to make payments to that Lender without a Tax Deduction but such authority has subsequently been revoked or expired (or is due to expire within six months),

 

and, in each case, the UK Borrower has notified that Lender in writing, that Lender and the UK Borrower shall co-operate in completing any additional procedural formalities necessary for that UK Borrower to obtain authorisation to make that payment without a Tax Deduction.

 

(i)If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (g)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment(s) or its participation in any Loan unless the Lender otherwise agrees.

 

(j)A UK Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.

 

(k)A UK Non-Bank Lender which is an Original Lender gives a Tax Confirmation to the Obligors by entering into this Agreement.

 

(l)A UK Non-Bank Lender shall promptly notify the Obligors’ Agent if there is any change in the position from that set out in the Tax Confirmation.

 

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(m)Following a reasonable request from an Obligor in writing, the relevant Lender shall provide to the Agent for each Obligor which makes a payment to which that Lender is entitled (or cause to be provided and updated) all correct, complete and accurate information reasonably requested and available to the Lender and necessary in order to permit such Obligor to comply with any obligations it may have under sections 891A, 891E, 891F and 891G of the TCA and all regulations made pursuant to those sections.

 

16.3Tax indemnity

 

(a)The Obligors' Agent shall or shall procure that another member of the Group will, within ten Business Days of demand by the Agent pay to a Protected Party an amount equal to any loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

 

(b)Paragraph (a) above shall not apply:

 

(i)with respect to any Tax assessed on a Finance Party under the law of the jurisdiction in which:

 

(A)that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for Tax purposes; or

 

(B)that Finance Party has a permanent establishment to which income under this Agreement is attributed in respect of amounts received or receivable in that jurisdiction; or

 

(C)that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction; or

 

(D)that is suffered or incurred for or on account of any Tax under the laws of The Netherlands to the extent levied on the basis of article 17a, paragraph c or any replacement of the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969) in case of any Finance Party having a substantial interest (aanmerkelijk belang) in a Dutch Obligor,

 

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

 

(ii)to the extent a loss, liability or cost:

 

(A)is compensated for by an increased payment under paragraph (c) of Clause 16.2 (Tax gross-up);

 

(B)would have been compensated for by an increased payment under paragraph (c) of Clause 16.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in paragraph (f) of Clause 16.2 (Tax gross-up) applied; or

 

(C)relates to a FATCA Deduction required to be made by a Party; or

 

(D)is suffered or incurred with respect to any Bank Levy (or payment attributable to, or liability arising as a consequence of, a Bank Levy) but only to the extent that such Bank Levy is no more onerous than:

 

I.in respect of a Bank Levy not yet enacted into law, any draft of such proposed Bank Levy as at the date of this Agreement; or

 

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II.in respect of any other Bank Levy, as set out under existing law as at the date of this Agreement.

 

(c)A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Obligors' Agent.

 

(d)A Protected Party shall, on receiving a payment from an Obligor under this Clause 16.3, notify the Agent.

 

16.4Tax Credit

 

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

(a)a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

(b)that Finance Party has obtained and utilised that Tax Credit,

 

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

 

16.5Filings

 

A Treaty Lender and each Obligor which makes a payment to which a Treaty Lender is entitled shall cooperate in completing any procedural formalities necessary for that Obligor to make that payment without a Tax Deduction. Such procedural formalities shall include, where applicable (but not be limited to) the timely submission of an application for treaty relief to the relevant authorities, including for the avoidance of doubt in respect of the implementation regulations of the Dutch Withholding Tax Act 2021 (uitvoeringsvoorschriften bronbelasting).

 

16.6Lender status confirmation

 

(a)Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate in the Transfer Certificate, Assignment Agreement, Increase Confirmation or Designation Notice which it executes on becoming a Party and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:

 

(i)in respect of a Canadian Obligor:

 

(A)not a Canadian Qualifying Lender;

 

(B)a Canadian Qualifying Lender (other than a Canadian Treaty Lender); or

 

(C)a Canadian Qualifying Lender solely on account of being a Canadian Treaty Lender,

 

(ii)in respect of a Dutch Obligor:

 

(A)not a Dutch Qualifying Lender;

 

(B)a Dutch Qualifying Lender other than a Dutch Treaty Lender; or

 

(C)a Dutch Qualifying Lender solely on account of being a Dutch Treaty Lender.

 

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(iii)in respect of an Irish Obligor:

 

(A)not an Irish Qualifying Lender;

 

(B)an Irish Qualifying Lender (other than an Irish Treaty Lender); or

 

(C)an Irish Qualifying Lender on account of being an Irish Treaty Lender,

 

(iv)in respect of a UK Obligor:

 

(A)not a UK Qualifying Lender;

 

(B)a UK Qualifying Lender (other than a UK Treaty Lender); or

 

(C)a UK Qualifying Lender solely on account of being a UK Treaty Lender,

 

(v)in respect of a US Obligor:

 

(A)not a US Qualifying Lender; or

 

(B)a US Qualifying Lender.

 

(b)If a New Lender, Increase Lender or Substitute Affiliate Lender fails to indicate its status in accordance with this Clause 16.6 then such New Lender, Increase Lender or Substitute Affiliate Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Canadian Qualifying Lender, a Dutch Qualifying Lender, an Irish Qualifying Lender, a UK Qualifying Lender or a US Qualifying Lender until such time as it notifies the Agent which category applies. A Transfer Certificate, Assignment Agreement, Increase Confirmation or Designation Notice shall not be invalidated by any failure of a Lender to comply with this Clause 16.6.

 

16.7Stamp taxes

 

The Obligors' Agent shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document, except for:

 

(a)any such Tax payable in connection with any Assignment Agreement or Transfer Certificate (as the case may be) or other document effecting the assignment, transfer, sub-participation, sub-contract or designation by any Finance Party of any of its rights and/or obligations under any Finance Document other than any such document entered into in accordance with Clause 19 (Mitigation by the Lenders) or Clause 38.5 (Replacement of Lender); or

 

(b)to the extent that such stamp duty, registration or other similar Tax becomes payable upon a voluntary registration made by any Finance Party save where the relevant Finance Party determines (acting reasonably) that such registration is required to maintain or enforce the rights of such Finance Party under the Finance Document.

 

16.8VAT

 

(a)All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

 

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(b)If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

(i)(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

(ii)(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

(c)Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

(d)Any reference in this Clause 16.8 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC or as implemented by the relevant member state of the European Union or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).

 

(e)In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.

 

16.9FATCA information

 

(a)Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

(i)confirm to that other Party whether it is:

 

(A)a FATCA Exempt Party; or

 

(B)not a FATCA Exempt Party;

 

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(ii)supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and

 

(iii)supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.

 

(b)If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

(c)Paragraph (a) above shall not oblige any Party to do anything which would or might in its reasonable opinion constitute a breach of:

 

(i)any law or regulation;

 

(ii)any fiduciary duty; or

 

(iii)any duty of confidentiality.

 

(d)If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

(e)If a Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:

 

(i)where a Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

 

(ii)where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date;

 

(iii)where a Borrower is a US Tax Obligor on a date on which an increase in Commitments takes effect pursuant to Clause 2.2 (Increase after cancellation) and the relevant Lender is an Increase Lender which was not a Lender immediately prior to the relevant increase, the relevant date on which an increase in Commitments takes effect pursuant to Clause 2.2 (Increase after cancellation);

 

(iv)the date a new US Tax Obligor accedes as a Borrower; or

 

(v)where a Borrower is not a US Tax Obligor, the date of a request from the Agent,

 

supply to the Agent:

 

(A)a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

 

(B)any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

 

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(f)The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Obligors' Agent.

 

(g)Each Lender agrees that if any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Obligors' Agent.

 

(h)The Agent and any Obligor may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. Neither the Agent nor any Obligor shall be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above (as applicable).

 

16.10FATCA Deduction

 

(a)Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

(b)Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Obligors' Agent and the Agent, and the Agent shall notify the other Finance Parties.

 

17.Increased Costs

 

17.1Increased Costs

 

(a)Subject to Clause 17.3 (Exceptions) the Obligors' Agent shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of

 

(i)the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation;

 

(ii)compliance with any law or regulation made after the date of this Agreement;

 

(iii)without prejudice to the generality of paragraphs (i) and (ii) above, the implementation or application of or compliance with Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates); or

 

(iv)the implementation or application of or compliance with the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives under it or issued in connection with it or in implementation of it.

 

(b)In this Agreement

 

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Increased Costs means:

 

(i)a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital;

 

(ii)an additional or increased cost; or

 

(iii)a reduction of any amount due and payable under any Finance Document,

 

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or an Ancillary Commitment or funding or performing its obligations under any Finance Document.

 

Basel III means:

 

(i)the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

(ii)the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

(iii)any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".

 

CRD IV means:

 

(i)

 

(A)Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

 

(B)Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms,

 

in each case as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018; and

 

(ii)

 

(A)Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

 

(B)Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.

 

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17.2Increased Cost claims

 

(a)A Finance Party intending to make a claim pursuant to Clause 17.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Obligors' Agent.

 

(b)Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs. For the avoidance of doubt, each Finance Party will not be obliged to divulge any confidential or sensitive information.

 

(c)A Finance Party (or its Affiliate) shall not be entitled to claim for Increased Costs pursuant to paragraph (a) of Clause 17.1 (Increased Costs) to the extent that such Increased Costs arose or were incurred or suffered by it (or its Affiliate) more than six months prior to the date on which the Agent notified the relevant claim to the Obligors' Agent pursuant to paragraph (a) above.

 

17.3Exceptions

 

(a)Clause 17.1 (Increased Costs) does not apply to the extent any Increased Cost is:

 

(i)attributable to a Tax Deduction required by law to be made by an Obligor;

 

(ii)attributable to a FATCA Deduction required to be made by a Party;

 

(iii)compensated for by Clause 16.3 (Tax indemnity) (or would have been compensated for under Clause 16.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 16.3 (Tax indemnity) applied);

 

(iv)attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;

 

(v)attributable to the implementation or application of or compliance with the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework" published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) (Basel II) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates); or

 

(vi)attributable to any Bank Levy (or any payment attributable to, or liability arising as a consequence of, a Bank Levy), but only to the extent that such Bank Levy is no more onerous for the Finance Parties concerned than:

 

(A)in respect of a Bank Levy not yet enacted into law, any draft of such proposed Bank Levy as at the date of this Agreement; or

 

(B)in respect of any other Bank Levy, as set out under existing law as at the date of this Agreement.

 

(b)In this Clause 17.3, a reference to a "Tax Deduction" has the same meaning given to that term in Clause 16 (Tax Gross Up and Indemnities).

 

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18.Other Indemnities

 

18.1Currency indemnity

 

(a)If any sum due from an Obligor under the Finance Documents (a Sum), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the First Currency) in which that Sum is payable into another currency (the Second Currency) for the purpose of:

 

(i)making or filing a claim or proof against that Obligor; or

 

(ii)obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

 

that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

(b)Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

 

18.2Other indemnities

 

The Obligors' Agent shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

 

(a)the occurrence of any Event of Default;

 

(b)a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 31 (Sharing among the Finance Parties);

 

(c)funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the revocation of that Utilisation Request under paragraph (b) of Clause 5.3 (Completion of a Utilisation Request) or of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

 

(d)a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Obligors' Agent.

 

18.3Indemnity to the Agent

 

The Obligors' Agent shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

 

(a)investigating any event which it reasonably believes is a Default;

 

(b)acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

 

(c)instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

 

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18.4Indemnity to the Sustainability Coordinator

 

(a)The Obligors’ Agent shall promptly indemnify the Sustainability Coordinator(s) against:

 

(i)any cost, loss or liability incurred by the Sustainability Coordinator(s) (acting reasonably) as a result of acting or relying on any notice, request, instruction or communication which it reasonably believes to be genuine, correct and appropriately authorised; and

 

(ii)any cost, loss or liability incurred by the Sustainability Coordinator(s) (otherwise than by reason of the Sustainability Coordinator's gross negligence or wilful misconduct) in acting as Sustainability Coordinator(s) in relation to the Facilities.

 

(b)The Sustainability Coordinator(s) may rely on this Clause 18.4 subject to Clause 1.6 (Third party rights) and the provisions of the Third Parties Act.

 

19.Mitigation by the Lenders

 

19.1Mitigation

 

(a)Each Finance Party shall, in consultation with the Obligors' Agent, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 10.2 (Illegality), Clause 16 (Tax Gross Up and Indemnities) or Clause 17 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

(b)Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

 

19.2Limitation of liability

 

(a)The Obligors' Agent shall promptly indemnify each Finance Party for all costs and expenses reasonably and properly incurred by that Finance Party as a result of steps taken by it under Clause 19.1 (Mitigation).

 

(b)A Finance Party is not obliged to take any steps under Clause 19.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

20.Costs and Expenses

 

20.1Transaction expenses

 

The Obligors' Agent shall promptly on demand pay the Agent and the Coordinators (subject to any applicable limits agreed between the Obligors' Agent and the Agent from time to time) all costs and expenses (including, among others, legal or notarial, if applicable, fees) reasonably and properly incurred by any of them in connection with the negotiation, preparation, printing, execution and syndication of:

 

(a)this Agreement and any other documents referred to in this Agreement; and

 

(b)any other Finance Documents executed after the date of this Agreement.

 

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20.2Amendment costs

 

If:

 

(a)an Obligor requests an amendment, waiver or consent;

 

(b)an amendment is required pursuant to Clause 32.10 (Change of currency); or

 

(c)an amendment is required pursuant to Clause 38.3 (Sustainability Amendment Event),

 

the Obligors' Agent shall, within three Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including, among others, legal or notarial, if applicable, fees) reasonably and properly incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.

 

20.3Enforcement costs

 

The Obligors' Agent shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including, among others, legal or notarial, if applicable, fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

 

20.4Transfer costs and expenses

 

Notwithstanding any other term of the Finance Documents but without prejudice to paragraph (a) of Clause 19.2 (Limitation of liability), if a Finance Party assigns, transfers, sub-participates or designates any of its rights, benefits or obligations under the Finance Documents (other than in accordance with Clause 19 (Mitigation by the Lenders) or Clause 38.5 (Replacement of Lender)) no member of the Group shall be required to pay any fees, costs, expenses or other amounts relating to or arising in connection with that assignment, transfer, sub-participation or designation (including, without limitation, any Taxes).

 

21.Guarantee and Indemnity

 

21.1Guarantee and indemnity

 

Each Guarantor irrevocably and unconditionally jointly and severally:

 

(a)guarantees to each Finance Party punctual performance by each Borrower of all that Borrower's obligations under the Finance Documents;

 

(b)undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

 

(c)agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 21 if the amount claimed had been recoverable on the basis of a guarantee.

 

21.2Continuing guarantee

 

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents (including any sums payable in connection with any Utilisation of the Commitments as increased pursuant to Clause 2.2 (Increase after cancellation)) regardless of any intermediate payment or discharge in whole or in part.

 

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21.3Reinstatement

 

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration, examinership or otherwise, without limitation, then the liability of each Guarantor under this Clause 21 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

 

21.4Waiver of defences

 

The obligations of each Guarantor under this Clause 21 will not be affected by an act, omission, matter or thing which, but for this Clause 21, would reduce, release or prejudice any of its obligations under this Clause 21 (without limitation and whether or not known to it or any Finance Party) including:

 

(a)any time, waiver or consent granted to, or composition with, any Obligor or other person;

 

(b)the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

 

(c)the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

(d)any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

 

(e)any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

 

(f)any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

 

(g)any insolvency or similar proceedings.

 

21.5Immediate recourse

 

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 21. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

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21.6Appropriations

 

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

 

(a)refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

 

(b)hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 21.

 

21.7Deferral of Guarantors' rights

 

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 21:

 

(a)to be indemnified by an Obligor;

 

(b)to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;

 

(c)to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

 

(d)to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 21.1 (Guarantee and indemnity);

 

(e)to exercise any right of set-off against any Obligor; and/or

 

(f)to claim or prove as a creditor of any Obligor in competition with any Finance Party.

 

If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for or, to the extent that the relevant Guarantor is not able to hold such amount on trust under the laws of its jurisdiction of incorporation, for and on behalf of the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 32 (Payment Mechanics).

 

21.8Release of Guarantors' right of contribution

 

If any Guarantor (a Retiring Guarantor) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:

 

(a)that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

 

(b)each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

 

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21.9Additional security
  
 This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

 

21.10Supported QFCs

 

(a)In this Clause 21.10:

 

(i)Beneficial Ownership Regulation means 31 C.F.R. § 1010.230.

 

(ii)BHC Act Affiliate of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

 

(iii)Covered Entity means any of the following:

 

(A)a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(B)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(C)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

(iv)Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

(v)QFC has the meaning given to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 United States Code 5390(c)(8)(D).

 

(b)Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, to the extent that any Finance Document provides support, through a guarantee, Security or otherwise, for any agreement or instrument that is a QFC (any such support, QFC Credit Support, and any such QFC, a Supported QFC), each Party acknowledges and agrees as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated under it, the US Special Resolution Regimes) in respect of such Supported QFC and such QFC Credit Support (with the provisions below applicable notwithstanding that any Finance Document or any Supported QFC may in fact be stated to be governed by the laws of the United States of America or a state of it):

 

(i)in the event a Covered Entity that is party to a Supported QFC (each, a Covered Party) becomes subject to a proceeding under a US Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and any obligation in or under such Supported QFC or such QFC Credit Support, and any right in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the US Special Resolution Regime if such Supported QFC and such QFC Credit Support (and any such interest, obligation and right in property) were governed by the laws of the US or a state of the US; and

 

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(ii)in the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a US Special Resolution Regime, Default Rights under any Finance Document that may otherwise apply to such Supported QFC or such QFC Credit Support and that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the US Special Resolution Regime if such Supported QFC and each Finance Document were governed by the laws of the US or a state of the US. Without limiting the foregoing, each Party understands and agrees that its rights and remedies with respect to a Defaulting Lender or an Impaired Agent shall not affect any right of any Covered Party with respect to any Supported QFC or any QFC Credit Support.

 

21.11Guarantee limitations: general

 

Without limiting any specific exemptions set out below, each Guarantor's obligations and liabilities under this Clause 21 or under any other guarantee or indemnity provision in a Finance Document with respect to any Additional Guarantor, is subject to any limitations set out in the Accession Letter applicable to such Additional Guarantor (as such limitations may be agreed with the Agent or otherwise in accordance with the terms of the Guarantee Principles).

 

21.12Guarantee limitations: England

 

Each Guarantor's obligations and liabilities under this Clause 21 or under any other guarantee or indemnity provision in a Finance Document will not extend to include any obligation or liability that would constitute unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006 or any equivalent and applicable provisions under laws applicable to any relevant Guarantor.

 

21.13Guarantee limitations: Ireland

 

The obligations and liabilities under this Clause 21 or under any other guarantee or indemnity provision in a Finance Document does not apply to any liability to the extent that it would result in or constitute unlawful financial assistance within the meaning of section 82 of the Irish Companies Act (or any analogous provision of any other applicable law) or a breach of section 239 of the Irish Companies Act (or any analogous provision of any other applicable law).

 

21.14Guarantee limitations: US

 

(a)Notwithstanding anything to the contrary contained in this Agreement or in any other Finance Document, the maximum liability of each US Guarantor under this Clause 21 shall in no event exceed an amount equal to the greatest amount that would not render such US Guarantor’s obligations hereunder and under any other Finance Document subject to avoidance under the US Bankruptcy Code or to being set aside, avoided or annulled under any applicable US Bankruptcy Code or any applicable US state fraudulent transfer or conveyance law (each a Fraudulent Transfer Law), in each case subject to applicable law and after giving effect to:

 

(i)all other liabilities of such Guarantor, contingent or otherwise, that are relevant under such Fraudulent Transfer Law (specifically excluding, however, any liabilities of such Guarantor in respect of intercompany indebtedness to any Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder); and

 

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(ii)the value as assets of such Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Law) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor pursuant to applicable law.

 

(b)Without prejudice to any of the other provisions of this Agreement or any other Finance Document, each Party agrees that, in the event any payment or distribution is made on any date by a US Guarantor under this Clause 21, each such US Guarantor shall be entitled to be indemnified by each other Guarantor in an amount equal to such payment, in each case multiplied by a fraction of which the numerator shall be the net worth of the contributing Guarantor and the denominator shall be the aggregate net worth of all Guarantors.

 

(c)Notwithstanding any other provision of this Agreement or any other Finance Document to the contrary, no obligation of a US Obligor shall be (or be deemed) guaranteed by, or otherwise supported directly or indirectly by the assets of, any member of the Group to the extent its guarantee could, as determined by the Obligors' Agent (acting reasonably and in good faith), result in material adverse US tax consequences for any member of the Group or any of its direct or indirect owners.

 

(d)Each US Guarantor and each Finance Party (by its acceptance of the guarantee under this Clause 21) hereby confirms that it is its intention that the guarantee under this Clause 21 shall not constitute a fraudulent transfer or conveyance for the purposes of any bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act of the United States or any similar federal, state or foreign law.

 

22.Representations
  
 Each Obligor makes the representations and warranties set out in this Clause 22 (other than the representations and warranties set out in Clause 22.10 (Financial statements) which are made by the Parent only) to each Finance Party on the date of this Agreement.

 

22.1Status

 

(a)Each Obligor is duly incorporated, organised or formed and validly existing under the law of its jurisdiction of incorporation.

 

(b)It and each of its Subsidiaries which is a Material Company has the power to own its assets and carry on its business as it is being conducted in all material respects.

 

22.2Binding obligations
  
 Subject to the Legal Reservations, the obligations expressed to be assumed by it in each Finance Document are legal, valid, binding and enforceable obligations.

 

22.3Non-conflict with other obligations
  
 The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:

 

(a)any law or regulation applicable to it, to the extent this would have a Material Adverse Effect;

 

(b)its constitutional documents in any material respect; or

 

(c)any agreement or instrument binding upon it or any of its assets, in each case to an extent or in a manner which would have a Material Adverse Effect.

 

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22.4Power and authority
  
 It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

 

22.5Validity and admissibility in evidence
  
 All Authorisations required:

 

(a)to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

 

(b)by it to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

 

  have been obtained or effected and are in full force and effect.

 

22.6Governing law and enforcement

 

Subject to the Legal Reservations:

 

(a)the choice of English law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation; and

 

(b)any judgment obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.

 

22.7Deduction of Tax

 

No Irish Borrower is required to make any Tax Deduction from any payment it may make under any Finance Document to a Lender which is an Irish Qualifying Lender, provided that, in the case of an Irish Treaty Lender, all necessary procedural formalities have been completed.

 

22.8No filing or stamp taxes

 

Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents except any filing, recording or enrolling or any tax or fee payable in relation to the Finance Documents which is referred to in any Legal Opinion and which will be made or paid promptly after the date of the relevant Finance Documents (to the extent required).

 

22.9No default

 

(a)No Event of Default is continuing or would reasonably be expected to result from the making of any Utilisation, other than any Utilisation of a Rollover Loan.

 

(b)No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject, in each case, which would have a Material Adverse Effect.

 

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22.10Financial statements

 

Its most recent financial statements delivered pursuant to this Agreement:

 

(a)have been prepared in accordance with the Accounting Principles which are stated to apply; and

 

(b)fairly represent in all material respects the consolidated financial condition and operations of the Parent during the relevant period to which they relate, subject, in the case of quarterly and/or half-yearly financial statements, to normal year-end adjustments and the absence of certain notes,

 

unless, in each case, otherwise referred to in those financial statements or the notes to them.

 

22.11Environment

 

It and each Material Company has obtained all requisite Environmental Approvals required for the carrying on of its business as currently conducted and is in compliance with:

 

(a)the terms and conditions of such Environmental Approvals; and

 

(b)all other applicable Environmental Laws,

 

where, in each case, if not obtained or complied with the failure or its consequences would have a Material Adverse Effect.

 

22.12Anti-corruption

 

It and each Material Company, as far as it is aware (having made reasonable enquiry):

 

(a)is conducting its businesses and is in compliance with applicable anti-corruption laws in all material respects;

 

(b)maintains policies and procedures reasonably designed to promote and achieve compliance with such laws applicable to it in the jurisdictions in which it operates;

 

(c)is not subject or party to any material transaction pursuant to which it has made, offered to make, promised to make or authorised any Prohibited Payment; and

 

(d)is not subject to any investigation by any governmental entity with regard to any actual or alleged Prohibited Payment which is reasonably likely to be adversely determined and which, if adversely determined, would reasonably be likely to have a Material Adverse Effect.

 

22.13Sanctions

 

(a)Neither it nor any Material Company:

 

(i)is a Restricted Party; or

 

(ii)has received written notice of or is or has been the subject of any claim, action, suit, proceeding or investigation with respect to Sanctions.

 

(b)The representations and warranties made under paragraph (a) above are made by any Obligor only if and to the extent that the making of such representations and warranties does not result in a violation of, or conflict with, section 7 of the German Foreign Trade Ordinance (Verordnung zur Durchführung des Außenwirtschaftsgesetzes) or any similar applicable anti-boycott law or regulation.

 

(c)For a Finance Party that notifies the Agent that it is to be regarded as a "Non-Eligible Finance Party" for this purpose (each a Non-Eligible Finance Party), this Clause 22 shall only apply for the benefit of that Non-Eligible Finance Party to the extent that such application does not result in (i) any violation of, or conflict with, section 7 of the German Foreign Trade Ordinance (Verordnung zur Durchführung des Außenwirtschaftsgesetzes), (ii) any violation of the Blocking Regulation, or (iii) any violation of, or conflict with any similar applicable anti-boycott law or regulation.

 

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(d)In connection with any amendment, waiver, determination or direction relating to any part of this Clause 22 of which a Non-Eligible Finance Party does not have the benefit, the Commitments of that Non-Eligible Finance Party will be excluded for the purpose of determining whether the consent of the Majority Lenders or all the Lenders has been obtained or whether the determination of the Majority Lenders or all the Lenders has been made.

 

22.14Pari passu ranking

 

Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

 

22.15No proceedings

 

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, are reasonably likely to be adversely determined, and which if so adversely determined would reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened in writing against it.

 

22.16Compliance with ERISA

 

(a)Each Obligor and its ERISA Affiliates administers its Plans, in compliance in all respects with all laws and regulations applicable to each of its Plans except as would not have a Material Adverse Effect.

 

(b)No event or condition exists in relation to a Plan which is reasonably likely to result in the imposition of a lien or other encumbrance on any of its assets which is reasonably likely to have a Material Adverse Effect.

 

(c)None of the following events have occurred with respect to any of the Obligors or their ERISA Affiliates:

 

(i)any Reportable Event;

 

(ii)the termination of or withdrawal from, the filing of a notice of intent to terminate, the institution by the PBGC of proceeding to terminate, or the appointment of a trustee to administer, any Plan subject to Title IV of ERISA; and

 

(iii)the engagement in any non-exempt prohibited transaction within the meaning of section 4975 of the IRS Code or section 406 of ERISA;

 

(iv)the incurrence of any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); and

 

(v)a determination or receipt by the Obligor of notification that a Plan is, or is expected to be, in "at risk" status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the IRS Code), or "endangered" or "critical status" within the meaning of Section 305 of ERISA,

 

in each case, except as would not have a Material Adverse Effect.

 

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22.17Investment Company Act

 

It is not required to be registered as an Investment Company under the United States Investment Company Act of 1940.

 

22.18Margin Stock and United States Securities Exchange Act

 

No part of the proceeds of a Facility shall be used, directly or indirectly, for the purpose of purchasing or carrying any "margin stock" within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States (the Federal Reserve Board). Neither the execution and delivery hereof by the Borrowers, nor the performance by them of any of the transactions contemplated by this Agreement (including the direct or indirect use of the proceeds of the Facilities) will violate or result in a violation of Regulation T, U or X of the Federal Reserve Board.

 

22.19Sustainability Information

 

As far as the Obligors’ Agent is aware (having made reasonable inquiry), all Sustainability Information was true, complete and accurate in all material respects and is not misleading in any material respect, in each case, as at the date it was prepared.

 

22.20Repetition

 

(a)The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on:

 

(i)the date of this Agreement;

 

(ii)other than in the case of the Repeating Representation made under Clause 22.10 (Financial statements), the date of each Utilisation Request and the first day of each Interest Period;

 

(iii)in the case of the Repeating Representation made under Clause 22.10 (Financial statements), on the date of delivery of, and by reference to, the relevant set of financial statements delivered pursuant to Clause 23.1 (Financial statements); and

 

(iv)in the case of an Additional Obligor, the day on which the company becomes an Additional Obligor.

 

(b)The representation in Clause 22.19 (Sustainability Information) is deemed to be made by the Obligors’ Agent on the date of each Sustainability Compliance Certificate.

 

23.Information Undertakings

 

The undertakings in this Clause 23 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

 

23.1Financial statements

 

(a)Subject to paragraph (b) below, the Obligors' Agent shall supply to the Agent in sufficient copies for all the Lenders (or provide in accordance with Clause 23.7 (Use of websites)):

 

(i)as soon as the same become available, but in any event within 120 days after the end of each of its financial years, the audited consolidated financial statements of the Parent for that financial year (the Annual Financial Statements);

 

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(ii)commencing with the financial statements in respect of the first half of the financial year ending on 31 December 2025, as soon as the same becomes available, but in any event within 90 days of the end of the first half of each of its financial years, the consolidated financial statements of the Parent for that financial half-year provided that any financial statements delivered in respect of the second financial quarter of each relevant financial year of the Parent shall be deemed to satisfy this requirement (in either case the Interim Financial Statements).

 

(b)If the common stock of the Parent is listed or registered with an internationally recognised exchange and the regulators or other relevant authority of such exchange grant dispensation for the Parent to delay the publication of its financial statements, the time period for the delivery of financial statements in accordance with paragraph (a) above will be automatically extended to any new date by which the Parent is required by such regulator or authority to publish those financial statements.

 

23.2Requirements as to financial statements

 

(a)The Parent (or the Obligors' Agent on behalf of the Parent) must notify the Agent of any material change in the Accounting Principles, practices or standards used in any Annual Financial Statements or Interim Financial Statements.

 

(b)If requested by the Agent, the Parent (or the Obligors' Agent on behalf of the Parent) must supply to the Agent (or provide in accordance with Clause 23.7 (Use of websites)):

 

(i)a full description of any change notified under paragraph (a) above; and

 

(ii)a reconciliation statement (the Reconciliation Statement) showing sufficient information in such detail and format as may be reasonably required by the Agent to enable the Lenders to make a proper comparison between the financial position shown by the set of Financial Statements prepared on the changed basis and the most recent Annual Financial Statements delivered to the Agent under this Agreement and prepared according to the Accounting Principles.

 

(c)Following any change referred to in paragraph (a) above, the Agent shall if requested by the Parent (or the Obligors' Agent on behalf of the Parent), or the Parent (or the Obligors' Agent on behalf of the Parent) shall if requested by the Agent, enter into discussions for a period of not more than 30 days and use reasonable endeavours to agree any amendments required to be made to any provisions of this Agreement which the Parties consider appropriate to ensure that the change does not result in a material alteration to the commercial effect of the terms of this Agreement. Any agreement between the Parent (or the Obligors' Agent on behalf of the Parent) and the Agent, with the prior consent of the Majority Lenders, will be binding on all the Parties and from the time of such agreement, no Reconciliation Statements will be required to be delivered under this Agreement in respect of the relevant changes.

 

(d)If no agreement is reached under paragraph (c) above on the required amendments to this Agreement, the Parent (or the Obligors' Agent on behalf of the Parent) or the Agent may, at the expiry of the 30 day period mentioned in paragraph (c) above (or earlier if the Agent and the Obligors' Agent acknowledge that no agreement will be reached within such period), appoint an independent firm of auditors or accountants (in each case acting as experts and not arbitrators) to determine any amendment required to be made to any provisions of this Agreement which those auditors or accountants consider appropriate to ensure that the change does not result in a material alteration to the commercial effect of the terms of this Agreement. Those amendments shall take effect when so determined by those auditors or accountants, and from the time of such determination no Reconciliation Statements will be required to be delivered under this Agreement in respect of the relevant changes. The cost and expense of those auditors or accountants shall be for the account of the Parent.

 

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(e)All financial statements and reports to be delivered shall be prepared on the basis of the applicable Accounting Principles.

 

(f)Any ratios, computations and other determinations shall be calculated in conformity with applicable Accounting Principles (provided that no Default or Event of Default shall arise from a breach of, or non-compliance with, this Agreement solely due to the re-calculation of a ratio, computation or determination under this Agreement in conformity with such applicable Accounting Principles).

 

23.3Sustainability Compliance Certificate, Sustainability Report and Verification Report

 

(a)From the SLL Commencement Date, the Obligors' Agent shall supply to the Agent in sufficient copies for all the Facility B Lenders (or provide in accordance with Clause 23.7 (Use of websites)), as soon as the same becomes available but in any event within 180 days after the end of each SLL Reference Period (commencing from the later of (i) the SLL Reference Period ending on or about 31 December 2025, and (ii) the first SLL Reference Period ending after the SLL Commencement Date) a Sustainability Compliance Certificate for that SLL Reference Period.

 

(b)The Sustainability Compliance Certificate shall:

 

(i)set out (in reasonable detail):

 

(A)the Group's performance (in accordance with the relevant Calculation Methodology) in respect of each SPT for each KPI for the relevant SLL Reference Period, together with the relevant calculations; and

 

(B)any Sustainability Margin Adjustment to be applied in accordance with Clause 12.6 (Margin adjustments - sustainability) following application of such Sustainability Margin Adjustment (if any);

 

(ii)attach a correct and complete copy of an annual sustainability assessment report prepared by or on behalf of the Parent setting out the Group's sustainability-related information for each KPI for the relevant SLL Reference Period (a Sustainability Report);

 

(iii)attach a correct and complete copy of the verification report prepared for that SLL Reference Period by a Sustainability Auditor in respect of each KPI that such Sustainability Auditor has been appointed to review and (in respect of the first Sustainability Compliance Certificate) the Baseline relating to that KPI (a Verification Report); and

 

(iv)confirm that the Sustainability Report and each Verification Report relating to the relevant SLL Reference Period and attached to the Sustainability Compliance Certificate is a correct and complete copy of the original and has not been amended or superseded as at the date of the Sustainability Compliance Certificate.

 

(c)Each Sustainability Compliance Certificate shall be signed by a Certifying Officer.

 

(d)From the SLL Commencement Date, the Parent (or the Obligors' Agent) shall procure that each Verification Report measures, calculates and verifies each KPI to which it relates (in accordance with the relevant Calculation Methodology) for the applicable SLL Reference Period and confirms whether or not the applicable SPTs for that SLL Reference Period have been met.

 

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23.4Sustainability Compliance Certificate Inaccuracy or Delay

 

(a)The Obligors’ Agent shall notify the Agent upon becoming aware of any material inaccuracy in a Sustainability Compliance Certificate (a Sustainability Compliance Certificate Inaccuracy). Such notice shall be provided together with:

 

(i)a description (in reasonable detail) of the relevant Sustainability Compliance Certificate Inaccuracy; and

 

(ii)a revised Sustainability Compliance Certificate which complies with the requirements of paragraph (b) of Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report) and which corrects the relevant Sustainability Compliance Certificate Inaccuracy.

 

(b)If the Obligors' Agent has failed to deliver to the Agent any Sustainability Compliance Certificate in accordance with Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report) within the timeframe prescribed therein but subsequently delivers the relevant Sustainability Compliance Certificate within a period of 40 Business Days after the final date for delivering such Sustainability Compliance Certificate in accordance with Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report) (a Sustainability Compliance Certificate Delay), the Agent shall accept such Sustainability Compliance Certificate and the Margin shall be re-calculated in accordance with Clause 12.6 (Margin adjustments - sustainability).

 

(c)Notwithstanding any other provision of this Clause 23.4, neither a Sustainability Compliance Certificate Inaccuracy nor a Sustainability Compliance Certificate Delay shall constitute a Sustainability Breach, a Default or an Event of Default or be treated as a failure to deliver a Sustainability Compliance Certificate for the purposes of determining whether a Declassification Event has occurred.

 

23.5Information: miscellaneous

 

(a)The Obligors' Agent shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

 

(i)at the same time, or as soon as reasonably practicable after, all documents dispatched by the Parent to its shareholders (or any class of them) or its creditors generally;

 

(ii)at the same time as, or as soon as reasonably practicable after, copies of periodic reporting delivered to the holders of any public debt securities of any member of the Group;

 

(iii)details of any litigation, arbitration or administrative proceedings which are current or pending against any Material Company and which are reasonably likely to be adversely determined and would if adversely determined, have a Material Adverse Effect; and

 

(iv)such other information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request.

 

(b)Any obligation to provide information in paragraph (a) above shall be deemed satisfied to the extent the relevant information is published on a Designated Website or filed with the United States Securities and Exchange Commission via the EDGAR filing system or any successor system and such information is publicly available.

 

23.6Notification of default

 

Each Obligor shall notify the Agent of any Event of Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

 

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23.7Use of websites

 

(a)The Obligors' Agent may satisfy any obligation under this Agreement to deliver any information by:

 

(i)filing the information with the United States Securities and Exchange Commission via the EDGAR filing system (or any successor system), provided that such information is publicly available; and/or

 

(ii)posting the information onto an electronic website designated by the Obligors' Agent and the Agent (the Designated Website) if:

 

(A)the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

 

(B)both the Obligors' Agent and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

 

(C)the information is in a format previously agreed between the Obligors' Agent and the Agent.

 

Each Lender agrees that www.smurfitkappa.com shall be a Designated Website for the purposes of this Agreement, without prejudice to any other website so designated pursuant to this Clause 23.7.

 

(b)The Agent shall supply each Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors' Agent and the Agent.

 

(c)The Obligors' Agent shall promptly upon becoming aware of its occurrence notify the Agent if:

 

(i)the Designated Website cannot be accessed due to technical failure;

 

(ii)the password specifications for the Designated Website change;

 

(iii)any new information which is required to be provided under this Agreement is posted onto the Designated Website;

 

(iv)any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

 

(v)the Obligors' Agent becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

 

If the Obligors' Agent notifies the Agent under paragraph (i) or (v) above, all information to be provided by the Obligors' Agent under this Agreement after the date of that notice shall be supplied in paper form or in accordance with paragraph (a)(i) above unless and until the Agent, the Obligors' Agent and each Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

 

(d)Any Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Obligors' Agent shall comply with any such request within ten Business Days.

 

23.8"Know your customer" checks

 

(a)If:

 

(i)the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

 

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(ii)any change in the status of an Obligor (or of a Holding Company of an Obligor) after the date of this Agreement;

 

(iii)a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer; or

 

(iv)any increase in Commitment pursuant to Clause 2.2 (Increase after cancellation)

 

obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

(b)Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

(c)Except in respect of the Pre-Approved Borrower and the Closing Date Guarantors, the Obligors' Agent shall, by not less than ten Business Days' prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 28 (Changes to the Obligors).

 

(d)Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Obligor obliges the Agent or any Lender to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, the Obligors' Agent shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor.

 

23.9Sustainability Information

 

(a)The Parent (or the Obligors' Agent) shall supply to the Agent, promptly upon request, any additional information which any Facility B Lender (through the Agent) may reasonably request in order to:

 

(i)determine and confirm if any SPT has been met; or

 

(ii)otherwise determine a member of the Group's compliance with its obligations under any Sustainability Provision.

 

(b)After the SLL Commencement Date has occurred, each Obligor shall notify the Agent of any Sustainability Breach (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

 

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(c)The Parties acknowledge and agree that the Agent, any Sustainability Coordinator and the Lenders may rely, without independent verification, upon the accuracy, adequacy and completeness of the Sustainability Information, and that neither the Agent, any Sustainability Coordinator nor any Lender:

 

(i)assumes any responsibility or has any liability for the Sustainability Information; or

 

(ii)has an obligation to conduct any appraisal of any Sustainability Information.

 

Any Sustainability Coordinator may, if not a Party, rely on this paragraph (c) subject to Clause 1.6 (Third party rights) and the provisions of the Third Parties Act.

 

24.General Undertakings

 

The undertakings in this Clause 24 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

 

24.1Authorisations

 

Each Obligor shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect, any authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure (subject to the Legal Reservations) the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.

 

24.2Compliance with laws

 

Each Obligor shall comply in all respects with all laws to which it is subject, if failure to do so would have a Material Adverse Effect.

 

24.3Negative pledge

 

In this Clause 24.3, Quasi-Security means an arrangement or transaction described in paragraph (b) below.

 

(a)No Obligor shall (and the Parent shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.

 

(b)No Obligor shall (and the Parent shall ensure that no other member of the Group will):

 

(i)sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor;

 

(ii)sell, transfer or otherwise dispose of any of its receivables on recourse terms;

 

(iii)enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

 

(iv)enter into any other preferential arrangement having a similar effect,

 

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

 

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(c)Paragraphs (a) and (b) above do not apply to any Security or (as the case may be) Quasi-Security, listed below:

 

(i)any Security or Quasi-Security existing on the Closing Date (including pursuant to the Transaction) and/or any replacement or renewals thereof (including in respect of any refinancing of the obligations secured by such existing Security or Quasi-Security) provided that any limit on the amount secured is not subsequently increased other than as a result of the capitalisation of interest;

 

(ii)any Security or Quasi-Security arising pursuant to any banker's liens or rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with depository institutions and securities accounts and other financial assets maintained with a securities intermediary, cash management, netting or set-off arrangement, in each case, entered into by any member of the Group in the ordinary course of its day to day business or its banking arrangements for the purpose of netting debit and credit balances (and if customary in the relevant jurisdiction, any other Security or Quasi-Security over cash balances granted in favour of an account bank in accordance with its general terms and conditions);

 

(iii)any payment or close out netting or set-off arrangement pursuant to any hedging or derivative transaction entered into by a member of the Group which is not for speculative purposes and is not otherwise prohibited by the Finance Documents (excluding any Security or Quasi-Security under a credit support arrangement in relation to a hedging or derivative transaction);

 

(iv)any lien arising by operation of law or by agreement to substantially the same effect or in the course of its day to day business and not as a result of any default or omission by any member of the Group;

 

(v)any Security or Quasi-Security over or affecting any asset or undertaking acquired by a member of the Group after the date of this Agreement if:

 

(A)the principal amount secured has not been incurred or increased in contemplation of or since the acquisition of that asset or undertaking by a member of the Group (other than as a result of the capitalisation of interest); and

 

(B)the maturity date of the principal amount secured has not been extended in contemplation of or since the acquisition (other than by way of replacing or refinancing that principal amount);

 

(vi)any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Group if:

 

(A)the principal amount secured has not been incurred or increased in contemplation of or since the acquisition of that company (other than as a result of the capitalisation of interest); and

 

(B)the maturity date of the principal amount secured has not been extended in contemplation of or since the acquisition (other than by way of replacing or refinancing that principal amount);

 

(vii)any Security or Quasi-Security entered into pursuant to any Finance Document;

 

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(viii)any interest of title of an owner of equipment or inventory on loan or consignment to, or subject to any title retention or similar arrangement with, any member of the Group, and any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group (including any related Uniform Commercial Code financing statements, or equivalent filings, registrations or agreements in any other jurisdiction) in the ordinary course of trading and not arising as a result of any default or omission by any member of the Group, or which are contained in any supplier's standard conditions of supply;

 

(ix)any Security or Quasi-Security over goods and documents of title thereto arising under documentary credit transactions entered into in the ordinary course of trade and on terms customary in that trade;

 

(x)any Security or Quasi-Security under leases, hire purchase agreements, conditional sale agreements or other agreements for the acquisition of assets or undertakings on deferred payment terms to the extent such Security or Quasi-Security relates only to the asset or undertaking leased or acquired;

 

(xi)any Security or Quasi-Security created over any undertaking or asset acquired or developed provided that such Security or Quasi-Security is for the sole purpose of financing or refinancing the acquisition or development of such undertaking or asset and provided that the principal amount of indebtedness secured does not exceed the cost of that acquisition or development;

 

(xii)any Security or Quasi-Security granted pursuant to or in connection with a Permitted Receivables Securitisation;

 

(xiii)rights over cash deposits granted in favour of a landlord for the purposes of securing performance of rent and service charge obligations under licences, subleases or leases of real property not prohibited by this Agreement in respect of the Group;

 

(xiv)liens for taxes not yet due or statutory liens imposed by the taxing authorities of any applicable jurisdiction in respect of any taxes, assessments or levies which are being contested in good faith by appropriate proceedings, provided in each case, that adequate reserves with respect to such contested taxes are maintained on the books of the appropriate members of the Group in conformity with the Accounting Principles;

 

(xv)any Security or Quasi-Security arising by operation of law as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes and/or VAT purposes or any analogous arrangement in any other jurisdiction, in each case, of which any Obligor is or has been a member;

 

(xvi)cash cover relating to a letters of credit or other documentary credits entered into in the ordinary course of trading;

 

(xvii)any Security or Quasi-Security arising from or in connection with a disposal not prohibited under Clause 24.4 (Disposals);

 

(xviii)any Security or Quasi-Security arising from or in connection with cash deposits, escrow arrangements or similar arrangements in connection with a letter of intent or purchase agreement for an acquisition or other transaction not prohibited under this Agreement;

 

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(xix)any Security or Quasi-Security granted by any member of the Group:

 

(A)pursuant to or in connection with workmen's compensation, unemployment insurance, social security health, disability, or other employee benefits, or property, casualty or liability insurance, assessments or other similar charges or deposits incidental to the conduct of the business of the relevant members of the Group (including security deposits posted with landlords and utility companies) or the ownership of any of their assets or properties or incurred pursuant to any analogous laws or regulations, in each case in the ordinary course of business and provided that such Security or Quasi-Security does not secure Financial Indebtedness;

 

(B)pursuant to or in connection with letters of credit, bank guarantees or similar instruments issued for the account of any member of the Group supporting obligations of the type set forth in paragraph (A) above;

 

(C)pursuant to or in connection with any carriers, warehousemen, mechanics, materialmen and other Security or Quasi-Security imposed by law;

 

(D)pursuant to or in connection with performance or surety bonds and other obligations of a like nature;

 

(E)pursuant to or in connection with zoning restrictions, easements, and similar restrictions on use of real property;

 

(F)pursuant to or in connection with interests of a licensor, lessor, sublicensor or sublessor (including any related Uniform Commercial Code financing statements (or equivalent filings, registrations or agreements in other jurisdictions)) under any lease, licence, sublease or sublicence not otherwise prohibited by this Agreement;

 

(G)pursuant to or in connection with precautionary Uniform Commercial Code financing statements regarding leases not otherwise prohibited by this Agreement;

 

(H)in favour of the United States of America or any department or agency of it, or in favour of any state government or political subdivision of it, or in favour of a prime contractor under a government contract of the United States, or of any state government or any political subdivision of it, and, in each case, resulting from acceptance of partial, progress, advance or other payments under government contracts of the United States, or of any state government or any political subdivision of it, or subcontracts under them;

 

(I)of a collecting bank arising in the ordinary course of business under Section 4-208 (or the applicable corresponding section) of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon; or

 

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

 

(xx)any Security or Quasi-Security securing indebtedness issued (including via exchange offer and regardless of when issued) in the capital markets if and to the extent that the obligations under this Agreement are secured by Security or Quasi-Security (as applicable) equal and rateable with the Security or Quasi-Security (as applicable) securing such indebtedness;

 

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(xxi)any Security or Quasi-Security arising as a result of any litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency;

 

(xxii)any Security or Quasi-Security granted by a member of the Group in favour of any other member of the Group;

 

(xxiii)any Security or Quasi-Security constituting contractual rights of set-off not securing any Financial Indebtedness;

 

(xxiv)any Security, Quasi-Security or other restriction or encumbrance granted in favour or for the benefit of a joint venture partner with respect to the pledge or transfer of the equity interests of any joint venture;

 

(xxv)any Security or Quasi-Security created with the prior written consent of the Agent (acting on the instructions of the Majority Lenders); and

 

(xxvi)any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi-Security given by any member of the Group other than any permitted under paragraphs (i) to (xxv) above) does not exceed $3,000,000,000 (or its equivalent in another currency or currencies) or, if higher, 7.5% of Consolidated Total Assets.

 

24.4Disposals

 

No Obligor shall (and the Parent shall ensure that no other member of the Group will) sell, lease, transfer or otherwise dispose of assets constituting all or substantially all of the business or assets of the Group except:

 

(a)between one or more members of the Group;

 

(b)pursuant to a Permitted Reorganisation or a Permitted Holdco Reorganisation;

 

(c)pursuant to the Transaction; or

 

(d)with the consent of the Agent (acting on the instructions of the Majority Lenders).

 

24.5Financial Indebtedness

 

(a)Except as permitted under paragraph (b) below, the Parent shall ensure that no member of the Group which is not a Guarantor will incur or allow to remain outstanding any Financial Indebtedness.

 

(b)Paragraph (a) above does not apply to Financial Indebtedness which is:

 

(i)incurred under the Finance Documents;

 

(ii)any Financial Indebtedness of a member of the Group existing on the date of this Agreement (as amended, restated, replaced or refinanced from time to time but not increased other than as a result of the capitalisation of interest);

 

(iii)any Financial Indebtedness (as amended, restated, replaced or refinanced from time to time) of any person acquired by a member of the Group on or after the Closing Date (including pursuant to the Transaction) which is incurred under arrangements in existence at the date of acquisition, but not incurred or increased (other than as a result of the capitalisation of interest) or its maturity date extended in contemplation of, or since, that acquisition (other than by way of a replacement or a refinancing);

 

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(iv)any Financial Indebtedness arising under any hedging or derivative transaction entered into in the ordinary course of business and not for speculative purposes;

 

(v)any Financial Indebtedness arising under any cash management agreement (including any short term exposure overdrafts and related liabilities arising from treasury, depositary, cash management services, cash pooling arrangements or in connection with any automated clearinghouse transfers of funds) entered into by a member of the Group in the ordinary course of its day to day business or banking arrangements;

 

(vi)any Financial Indebtedness arising as a result of or in connection with:

 

(A)any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of share capital (or any class of share capital);

 

(B)the repayment or distribution of any dividend or share premium reserve; or

 

(C)the redemption, repurchase, defeasance, retirement or repayment any of share capital;

 

(vii)any Financial Indebtedness arising under a Permitted Guarantee, including any guarantee by a Guarantor of Financial Indebtedness that is otherwise permitted to exist or be incurred pursuant to the terms of the Finance Documents;

 

(viii)any Financial Indebtedness arising by operation of law as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes, or analogous arrangement in any other jurisdiction, in each case, of which any Obligor is or has been a member;

 

(ix)any Financial Indebtedness to the extent covered by a letter of credit or guarantee issued under an Ancillary Facility;

 

(x)any Financial Indebtedness consisting of letters of credit and bank guarantees to support rental obligations, performance bonds, completion guarantees, surety bonds, custom bonds or similar obligations;

 

(xi)any Financial Indebtedness incurred or outstanding pursuant to or in connection with a Permitted Receivables Securitisation;

 

(xii)any Financial Indebtedness incurred under any lease (including any finance or capital lease, concession, licence, operating lease or other arrangement (or guarantee thereof));

 

(xiii)any Financial Indebtedness arising as a result of any judgment or order of a court, arbitral body or agency pursuant to or in connection with any litigation, arbitration or administrative proceedings;

 

(xiv)any Financial Indebtedness (including obligations in respect of letters of credit, bank guarantees and similar instruments) providing workers' compensation, social security, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such person, in each case incurred in the ordinary course of business;

 

(xv)any Financial Indebtedness arising in the ordinary course of its day-to-day business as a result of participation in any customer-sponsored supply chain financing program;

 

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(xvi)not permitted by the preceding paragraphs and the outstanding principal amount of which (when aggregated with the principal amount of any other indebtedness of any member of the Group which is not a Guarantor other than any indebtedness permitted under paragraphs (i) to (xv) above) does not exceed $3,000,000,000 (or its equivalent in another currency or currencies) or, if higher, 7.5% of the Consolidated Total Assets in aggregate at any time.

 

24.6Mergers

 

No Obligor shall enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction, other than any Permitted Reorganisation, Permitted Holdco Reorganisation or pursuant to the Transaction.

 

24.7Change of business

 

The Parent shall procure that no substantial change is made to the general nature of the business of the Group (taken as a whole) from that carried on at the date of this Agreement.

 

24.8Pari passu ranking

 

Each Obligor shall ensure that its payment obligations under the Finance Documents will at all times rank at least pari passu with all its other unsecured and unsubordinated creditors, except those whose claims are mandatorily preferred by law.

 

24.9Sanctions

 

(a)No Obligor shall, and shall not knowingly permit or authorise any other person to:

 

(i)directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of any utilisation under this Agreement:

 

(A)to fund any trade, business or other activities for the benefit of or for any Restricted Party; or

 

(B)in any other manner that would reasonably be expected to result in any Obligor or any Lender being in breach of any Sanctions or becoming a Restricted Party; or

 

(ii)fund all or part of any payment in connection with a Finance Document out of proceeds derived from business or transactions with a Restricted Party.

 

(b)Paragraph (a) above applies to any Obligor only if and to the extent that making of or compliance with such undertakings does not result in a violation of, or conflict with, section 7 of the German Foreign Trade Ordinance (Verordnung zur Durchführung des Außenwirtschaftsgesetzes) or any similar applicable anti-boycott law or regulation.

 

(c)For a Finance Party that notifies the Agent that it is to be regarded as a "Non-Eligible Finance Party" for this purpose, this Clause 24.9 shall only apply for the benefit of that Non-Eligible Finance Party to the extent that such application does not result in (i) any violation of, or conflict with, section 7 of the German Foreign Trade Ordinance (Verordnung zur Durchführung des Außenwirtschaftsgesetzes), (ii) any violation of the Blocking Regulation, or (iii) any violation of, or conflict with, similar applicable anti-boycott law or regulation.

 

(d)In connection with any amendment, waiver, determination or direction relating to any part of this Clause 24.9 of which a Non-Eligible Finance Party does not have the benefit, the Commitments of that Non-Eligible Finance Party will be excluded for the purpose of determining whether the consent of the Majority Lenders or all the Lenders has been obtained or whether the determination of the Majority Lenders or all the Lenders has been made.

 

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24.10ERISA

 

(a)Each Obligor shall, and shall ensure that its ERISA Affiliates will, administer its Plans and shall comply in all respects with all laws and regulations applicable to each of its Plans, in each case except as would not have a Material Adverse Effect.

 

(b)Each of the Obligors and its ERISA Affiliates shall ensure that no event or condition exists at any time in relation to a Plan which is reasonably likely to result in the imposition of a lien or other encumbrance on any of its assets which is reasonably likely to have a Material Adverse Effect.

 

(c)Each Obligor shall procure that none of the following events have occurred with respect to it or its ERISA Affiliates, and each Obligor shall promptly (and in any event within 20 Business Days) notify the Agent upon becoming aware of any of the following events:

 

(i)any Reportable Event;

 

(ii)the termination of or withdrawal from, the filing of a notice of intent to terminate, the institution by the PBGC of any proceeding to terminate, or the appointment of a trustee to administer, any Plan subject to Title IV of ERISA; and

 

(iii)the engagement in any non-exempt prohibited transaction within the meaning of section 4975 of the IRS Code or section 406 of ERISA;

 

(iv)the incurrence of any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); and

 

(v)a determination or receipt by the Obligor of notification that a Plan is, or is expected to be, in "at risk" status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the IRS Code), or "endangered" or "critical status" within the meaning of Section 305 of ERISA,

 

in each case, except as would not have a Material Adverse Effect.

 

25.Sustainability

 

25.1Declassification Event

 

(a)On and at any time after the occurrence of a Declassification Event the Agent may (and shall if so directed by the Majority Facility B Lenders) by notice to the Obligors' Agent declassify Facility B as "sustainability-linked".

 

(b)With effect on and from the Declassification Date:

 

(i)Clause 12.6 (Margin adjustments - sustainability) and each Sustainability Provision shall cease to apply; and

 

(ii)no Sustainability Margin Adjustment will apply to any Utilisation.

 

(c)No Facility may be re-classified as sustainability-linked on or after the Declassification Date without the consent of the Agent (acting on the instructions of the Majority Facility B Lenders).

 

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25.2Sustainability Publicity

 

At any time before the SLL Commencement Date or after any Declassification Date, the Parent shall not (and shall ensure that no other member of the Group will) make any disclosure that references any Facility or any Utilisation as "sustainability-linked".

 

25.3SLL Commencement Date

 

No Obligor shall be obliged to comply with any Sustainability Provision before the SLL Commencement Date.

 

26.Events of Default

 

Each of the events or circumstances set out in this Clause 26 is an Event of Default, save for Clause 26.12 (Acceleration), Clause 26.13 (Excluded matters), Clause 26.14 (Permitted Receivables Securitisations) and Clause 26.15 (Clean-Up Period).

 

26.1Non-payment

 

An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless:

 

(a)its failure to pay is caused by:

 

(i)administrative or technical error; or

 

(ii)a Disruption Event; and

 

(b)payment is made within:

 

(i)(in the case of paragraph (a)(i) above) five Business Days of its due date; or

 

(ii)(in the case of paragraph (a)(ii) above) ten Business Days of its due date.

 

26.2Other obligations

 

(a)Subject to paragraphs (b) to (d) below, an Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 26.1 (Non-payment)).

 

(b)Other than where paragraph (c) below applies, no Event of Default will occur under paragraph (a) above if the failure to comply is capable of remedy and is remedied within 20 Business Days of the earlier of (i) the Agent giving notice to the Obligors' Agent and (ii) the relevant Obligor or the Obligors' Agent becoming aware of the failure to comply.

 

(c)No Default will occur under paragraph (a) above in relation to a failure to comply with paragraph (a) of Clause 2.5 (Closing Date Obligors), provided that the failure to comply is remedied within 60 days after the Closing Date.

 

(d)Paragraph (b) above does not apply to a failure to comply with paragraph (b) of Clause 2.5 (Closing Date Obligors).

 

(e)No Event of Default will occur under this Clause 26.2 by reason only of:

 

(i)an Obligor's failure to comply with a Sustainability Provision;

 

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(ii)a Sustainability Compliance Certificate Inaccuracy; or

 

(iii)a Sustainability Compliance Certificate Delay.

 

26.3Misrepresentation

 

(a)Any representation or warranty made or deemed to be made by an Obligor in this Agreement or in any other Finance Document is or proves to have been incorrect, untrue or misleading in any material respect when made or deemed to be made.

 

(b)No Event of Default under paragraph (a) above will occur if the event or circumstance giving rise to the representation or statement being incorrect, untrue or misleading is capable of remedy and is remedied within 20 Business Days of the earlier of (i) the Agent giving notice to the Obligors' Agent and (ii) the relevant Obligor or the Obligors' Agent becoming aware of the misrepresentation.

 

(c)No Event of Default will occur under this Clause 26.3 to the extent that the representation or statement concerns, or the document consists of, Sustainability Information or relates to any Sustainability Provision.

 

26.4Cross acceleration

 

(a)Any Financial Indebtedness of any Obligor or Material Company is not paid when due nor within any applicable grace period, unless such failure to pay is caused by a temporary administrative error, a technical error or a Disruption Event, and in any event such payment is made within five Business Days of the end of any applicable grace period).

 

(b)Any Financial Indebtedness of any Obligor or Material Company is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

 

(c)No Event of Default will occur under this Clause 26.4 if:

 

(i)the aggregate amount of Financial Indebtedness falling within paragraphs (a) and (b) above is less than $150,000,000 (or its equivalent in any other currency or currencies); or

 

(ii)the Financial Indebtedness was incurred and/or is outstanding pursuant to or in connection with a Permitted Receivables Securitisation.

 

26.5Insolvency

 

(a)A Material Company is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any of the Finance Parties in their capacities as such) with a view to rescheduling any of its indebtedness.

 

(b)A Material Company is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due or insolvent.

 

(c)A moratorium is declared in respect of any indebtedness of any Material Company.

 

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26.6Insolvency proceedings

 

(a)Subject to paragraph (b) below, any corporate action, legal proceedings or other formal or legal procedure or step is taken in relation to:

 

(i)the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, examinership or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Material Company;

 

(ii)a composition, compromise, assignment or arrangement with any creditor of any Material Company;

 

(iii)the appointment of a liquidator, receiver, administrative receiver, administrator, examiner, process advisor, compulsory manager or other similar officer in respect of any Material Company or any of its assets with an aggregate value in excess of $100,000,000 (or its equivalent in any other currency or currencies); or

 

(iv)enforcement of any Security over any assets of any Material Company with an aggregate value in excess of $100,000,000 (or its equivalent in any other currency or currencies),

 

or any analogous procedure or step is taken in any jurisdiction.

 

(b)Paragraph (a) above shall not apply to:

 

(i)any winding-up petition which is contested in good faith as being frivolous or vexatious and is discharged, stayed or dismissed within 20 Business Days of commencement; or

 

(ii)any step or procedure contemplated by a Permitted Reorganisation or a Permitted Holdco Reorganisation.

 

26.7Creditors' process

 

Any expropriation, attachment, sequestration, distress, execution or Dutch executory attachment (executoriaal beslag) affects any asset or assets of an Obligor having an aggregate value in excess of $100,000,000 (or its equivalent in any other currency or currencies) and is not discharged within 20 Business Days.

 

26.8Ownership of Obligors

 

An Obligor (other than the Parent) is not or ceases to be a member of the Group (other than pursuant to a Permitted Holdco Reorganisation, a Permitted Reorganisation or as a result of a disposal which is not prohibited under the terms of this Agreement).

 

26.9Unlawfulness

 

It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents to an extent which would be materially prejudicial to the Finance Parties.

 

26.10Repudiation

 

An Obligor repudiates any Finance Document or evidences an intention to repudiate any Finance Document.

 

26.11United States Bankruptcy Laws

 

Any of the following occurs in respect of any Obligor in each case under US Bankruptcy Law:

 

(a)it makes a general assignment for the benefit of creditors;

 

(b)it commences a voluntary case or proceeding under any US Bankruptcy Law; or

 

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(c)an involuntary case under any US Bankruptcy Law is commenced against it and is not dismissed or stayed within 60 days after commencement of the case; or

 

(d)an order for relief or other order approving any case or proceeding is entered under any US Bankruptcy Law,

 

or, in the case of a Canadian Borrower, an analogous proceeding in Canada, and in each case, other than in respect of any Permitted Reorganisation or a Permitted Holdco Reorganisation.

 

26.12Acceleration

 

(a)At any time while an Event of Default is continuing the Agent may, and shall if so directed by the Majority Lenders, by notice to the Obligors' Agent:

 

(i)cancel each Available Commitment of each Lender and of each Affiliate of any Lender which is a Swingline Lender whereupon each such Available Commitment shall immediately be cancelled and each Facility shall immediately cease to be available for further utilisation;

 

(ii)declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;

 

(iii)declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders;

 

(iv)declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities to be immediately due and payable, whereupon they shall become immediately due and payable; and/or

 

(v)declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders.

 

(b)If an Event of Default described in Clause 26.11 (United States Bankruptcy Laws) occurs with respect to the Borrower or upon the entry of an order for relief in a voluntary or involuntary bankruptcy of the Borrower, the Total Commitments will, if not already cancelled under this Agreement, be immediately and automatically cancelled and all amounts outstanding under the Finance Documents and owing by the Borrower will be immediately and automatically due and payable, in each case, without any requirement of notice or any other formality.

 

26.13Excluded matters

 

(a)Prior to the first Utilisation Date, no breach of any representation, warranty, undertaking or other term of (or default under) any document evidencing Financial Indebtedness of the Group arising as a direct or indirect result of any person entering into and/or performing its obligations under any Finance Document (or carrying out the transactions contemplated by the Finance Documents); and

 

(b)no breach of any representation, warranty, undertaking or other term of (or default or event of default under) any Ancillary Document,

 

shall constitute or result in a breach of any representation or warranty under the Finance Documents, a breach of undertaking or other term of the Finance Documents or a Default.

 

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(c)No Event of Default, Default or breach of any term of any Finance Document will occur as a result of a failure to comply with any Sustainability Provision (including any Sustainability Breach).

 

26.14Permitted Receivables Securitisations

 

Notwithstanding any provision of this Agreement to the contrary, in connection with a Permitted Receivables Securitisation any member of the Group may, without limitation, do any of the following:

 

(a)establish or procure the establishment of a Securitisation SPV;

 

(b)transfer receivables (including any bills of exchange and claims and rights of a person to receive payment arising from the provision of goods, credit or services and related assets (including, but not limited to, all collateral securing such receivable, proceeds collected on such receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with receivables securitisation transactions and any related hedging obligations (whether existing now or in the future)) to a Securitisation SPV either directly or indirectly;

 

(c)create, in respect of the bank accounts into which the collections in respect of the transferred receivables in respect of a Permitted Receivables Securitisation (including in respect of receivables which are not purchased by a Securitisation SPV provided that the portion of cash in the relevant account which is attributable to such receivables is held on trust for members of the Group other than Securitisation SPVs or is otherwise transferred to members of the Group other than any Securitisation SPV) are paid (and provided that no other amounts are paid into such accounts), trusts, pledges, charges or other account protection arrangements, whether contractual or proprietary in nature; and/or direct customers (including in respect of receivables which are not purchased by a Securitisation SPV, provided that the portion of cash in the relevant account which is attributable to such receivables is held on trust for members of the Group other than Securitisation SPVs or is otherwise transferred to members of the Group other than any Securitisation SPV), to one or more collection accounts (whether or not in the name of a Group member or a Securitisation SPV);

 

(d)grant Security or Quasi-Security over the shares of any Securitisation SPV; or

 

(e)provide loans to a Securitisation SPV in connection with, and as permitted under, a Permitted Receivables Securitisation, but only to the extent consistent with the Non-Recourse nature of the Permitted Receivables Securitisation,

 

and all the representations, warranties, covenants and other terms of each Finance Document will be construed in such a way to permit any Permitted Receivables Securitisation.

 

26.15Clean-Up Period

 

(a)In this Clause, Clean-Up Period means the period commencing on the Closing Date and ending on the date falling 120 days after the Closing Date.

 

(b)Notwithstanding any other provision of any Finance Document, but subject to paragraphs (c) and (d) below and until the end of the Clean-Up Period, any matter or circumstance that exists in respect of the Group which would constitute a breach of representation or warranty, a breach of undertaking or an Event of Default will be deemed not to be a breach of representation or warranty, a breach of undertaking or an Event of Default (as the case may be) if:

 

(i)it would have been (if it were not for this provision) a breach of representation or warranty, a breach of undertaking or an Event of Default only by reason of circumstances relating exclusively to the WestRock Group (or any obligation to procure or ensure in relation to the WestRock Group);

 

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(ii)it is capable of remedy within the Clean-Up Period and reasonable steps are being taken to remedy it;

 

(iii)the circumstances giving rise to it have not been procured or approved by any member of the Group (other than any member of the WestRock Group); and

 

(iv)it is not reasonably likely to have a Material Adverse Effect.

 

(c)Paragraph (b) above shall not apply to any matter or circumstance referred to in Clause 26.1 (Non-payment) or a failure to comply with Clause 2.5 (Closing Date Obligors).

 

(d)If the relevant matter or circumstance is continuing on or after the end of the Clean-Up Period, there shall be a breach of representation or warranty, breach of undertaking or Event of Default, as the case may be notwithstanding paragraph (b) above (and without prejudice to the rights and remedies of the Finance Parties).

 

27.Changes to the Lenders

 

27.1Assignments and transfers by the Lenders

 

Subject to this Clause 27, a Lender (the Existing Lender) may:

 

(a)assign any of its rights;

 

(b)transfer by novation any of its rights and obligations; or

 

(c)sub-participate, or enter into any other agreement or arrangement having an economic effect substantially similar to a sub-participation of, any of its obligations,

 

to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the New Lender).

 

27.2Conditions of assignment or transfer

 

(a)The consent of the Obligors' Agent is required for an assignment, transfer or sub-participation by an Existing Lender, unless the assignment or transfer is:

 

(i)to another Lender or an Affiliate of a Lender; or

 

(ii)made at a time when an Event of Default is continuing.

 

(b)In the case of any assignment transfer or sub-participation (other than an assignment, transfer or sub-participation by a Lender to its Affiliate), such assignment, transfer or sub-participation shall only be effective if the Existing Lender has informed the Obligors' Agent in writing at least five Business Days prior to the date of the relevant assignment, transfer or sub-participation (regardless of whether the consent of the Obligors' Agent is required).

 

(c)The consent of the Obligors' Agent to an assignment, transfer or sub-participation must not be unreasonably withheld or delayed. The Obligors' Agent will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Obligors' Agent within that time.

 

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(d)An assignment, transfer or sub-participation of part of a Lender's participation must be, except where a designation of Loans occurs pursuant to Clause 27.8 (Lender Affiliates and Facility Office) below:

 

(i)in a minimum amount of $5,000,000; and

 

(ii)in an amount such that the Base Currency Amount of that Lender's remaining participation (when aggregated with its Affiliates' and Related Funds' participation) in respect of Commitments or Utilisations made under the Facility is in a minimum amount of $5,000,000.

 

(e)An assignment will only be effective on:

 

(i)receipt by the Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it had been an Original Lender; and

 

(ii)performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.

 

(f)A transfer will only be effective if the procedure set out in Clause 27.5 (Procedure for transfer) is complied with.

 

(g)If:

 

(i)a Lender assigns, transfers or designates any of its rights or obligations under the Finance Documents or changes or substitutes its Facility Office; and

 

(ii)as a result of circumstances existing at the date the assignment, transfer, designation or change occurs, an Obligor would be obliged to make a payment to the New Lender or the Lender or the Substitute Affiliate Lender acting through its new Facility Office under Clause 16 (Tax Gross Up and Indemnities) or Clause 17 (Increased Costs),

 

then (subject to paragraph (ii) below) the New Lender, Substitute Affiliate Lender or Lender acting through its new or substitute Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer, designation or change had not occurred.

 

(iii)Sub-paragraph (i) above shall not apply in relation to Clause 16.2 (Tax gross-up) (with respect to a relevant UK Borrower), to a New Lender or Substitute Affiliate Lender that is a UK Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii)(B) of Clause 16.2 (Tax gross-up) if the UK Borrower making the payment has not made a Borrower DTTP Filing in respect of that UK Treaty Lender provided that sub-paragraph (i) above shall continue to apply in respect of a payment that falls due before or less than five Business Days after the Obligors’ Agent receives a copy of the documentation containing confirmation of the UK Treaty Lender’s scheme reference number and jurisdiction of tax residence.

 

(h)Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.

 

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(i)Each Lender shall ensure that at all times its Overall Facility B Commitment is not less than:

 

(i)its Swingline Commitment; or

 

(ii)if it does not have a Swingline Commitment, the Swingline Commitment (if any) of its Affiliate which is a Swingline Lender.

 

27.3Assignment or transfer fee

 

The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of $3,000.

 

27.4Limitation of responsibility of Existing Lenders

 

(a)Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

 

(i)the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

 

(ii)the financial condition of any Obligor;

 

(iii)the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

 

(iv)the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

 

and any representations or warranties implied by law are excluded.

 

(b)Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

 

(i)has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

 

(ii)will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

 

(c)Nothing in any Finance Document obliges an Existing Lender to:

 

(i)accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 27; or

 

(ii)support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

 

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27.5Procedure for transfer

 

(a)Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.

 

(b)The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.

 

(c)Subject to Clause 27.11 (Pro rata interest settlement), on the Transfer Date:

 

(i)to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the Discharged Rights and Obligations);

 

(ii)each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;

 

(iii)the Agent, the Coordinators, the New Lender and other Lenders and any relevant Ancillary Lender shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Coordinators and any relevant Ancillary Lender and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

 

(iv)the New Lender shall become a Party as a Lender.

 

27.6Procedure for assignment

 

(a)Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer), an assignment may be effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.

 

(b)The Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.

 

(c)Subject to Clause 27.11 (Pro rata interest settlement), on the Transfer Date:

 

(i)the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement;

 

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(ii)the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the Relevant Obligations) and expressed to be the subject of the release in the Assignment Agreement; and

 

(iii)the New Lender shall become a Party as a Lender and will be bound by obligations equivalent to the Relevant Obligations.

 

(d)Lenders may utilise procedures other than those set out in this Clause 27.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 27.5 (Procedure for transfer), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 27.2 (Conditions of assignment or transfer).

 

27.7Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation

 

The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate, an Assignment Agreement or an Increase Confirmation, send to the Obligors' Agent a copy of that Transfer Certificate, Assignment Agreement or Increase Confirmation.

 

27.8Lender Affiliates and Facility Office

 

(a)In respect of a Loan or Loans to a particular Borrower (Designated Loans) a Lender (a Designating Lender) may at any time and from time to time designate (by written notice to the Agent and the Obligors' Agent):

 

(i)a substitute Facility Office from which it will make Designated Loans (a Substitute Facility Office); or

 

(ii)nominate an Affiliate to act as the Lender of Designated Loans (a Substitute Affiliate Lender).

 

(b)A notice to nominate a Substitute Affiliate Lender must be in the form set out in Schedule 17 (Form of Substitute Affiliate Lender Designation Notice) (the Designation Notice) and be countersigned by the relevant Substitute Affiliate Lender confirming it will be bound as a Lender under this Agreement, in respect of the Designated Loans in respect of which it acts as Lender.

 

(c)The Designating Lender will act as the representative of any Substitute Affiliate Lender it nominates for all administrative purposes under this Agreement. The Obligors, the Agent and the other Finance Parties will be entitled to deal only with the Designating Lender, except that payments will be made in respect of Designated Loans to the Facility Office of the Substitute Affiliate Lender. In particular the Commitments of the Designating Lender will not be treated as reduced by the introduction of the Substitute Affiliate Lender for voting purposes under this Agreement or the other Finance Documents.

 

(d)Save as mentioned in paragraph (c) above, a Substitute Affiliate Lender will be treated as a Lender for all purposes under the Finance Documents (other than for the purposes of the definition of US Qualifying Lender at Clause 16.1 (Tax Gross Up and Indemnities) in the case where that Substitute Affiliate Lender is not the beneficial owner of the relevant payment (or a portion thereof) under the IRS Code) and having a Commitment equal to the principal amount of all Designated Loans in which it is participating if and for so long as it continues to be a Substitute Affiliate Lender under this Agreement.

 

(e)A Designating Lender may revoke its designation of an Affiliate as a Substitute Affiliate Lender by notice in writing to the Agent and the Obligors' Agent provided that such notice may only take effect when there are no Designated Loans outstanding to the Substitute Affiliate Lender. Upon such Substitute Affiliate Lender ceasing to be a Substitute Affiliate Lender the Designating Lender will automatically assume (and be deemed to assume without further action by any Party) all rights and obligations previously vested in the Substitute Affiliate Lender.

 

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(f)If a Designating Lender designates a Substitute Facility Office or Substitute Affiliate Lender in accordance with this Clause 27.8 the provisions of paragraph (h) of Clause 27.2 (Conditions of assignment or transfer) shall apply to or in respect of any Substitute Facility Office or Substitute Affiliate Lender.

 

27.9Maintenance of Register

 

The Agent, acting solely for this purpose as agent for the US Borrowers, shall maintain at one of its offices a register for the recordation of the names and addresses of the Lenders, and the principal and interest amount owing to each Lender, pursuant to the terms hereof from time to time (the Register). Any transfer shall be effective only upon recordation of such transfer in the Register, and the US Borrowers may treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The right to the principal of, and interest on, the loan facility may be transferred or assigned only if such transfer or assignment is recorded in the Register. The Register shall be available for inspection by the Obligors' Agent and any Lender, at any reasonable time upon reasonable prior notice.

 

27.10Security over Lenders' rights

 

In addition to the other rights provided to Lenders under this Clause 27, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:

 

(a)any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and

 

(b)any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,

 

except that no such charge, assignment or Security shall:

 

(i)release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or

 

(ii)require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.

 

27.11Pro rata interest settlement

 

(a)If the Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 27.5 (Procedure for transfer) or any assignment pursuant to Clause 27.6 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):

 

(i)any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (Accrued Amounts) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and

 

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(ii)the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that:

 

(A)when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and

 

(B)the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 27.11, have been payable to it on that date, but after deduction of the Accrued Amounts.

 

(b)In this Clause 27.11 references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.

 

(c)An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 27.11 but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents.

 

28.Changes to the Obligors

 

28.1Assignments and transfer by Obligors

 

Subject to Clause 28.2 below, no Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

 

28.2Additional Borrowers

 

(a)Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 23.8 ("Know your customer" checks), the Obligors' Agent may request that any member of the Group becomes an Additional Borrower.

 

(b)A member of the Group shall become an Additional Borrower if:

 

(i)except in the case of the Pre-Approved Borrower, either:

 

(A)all the Lenders (acting reasonably) under the relevant Facility approve the addition of that member of the Group as an Additional Borrower in respect of that Facility; or

 

(B)that member of the Group is incorporated in a Pre-Approved Jurisdiction;

 

(ii)the Obligors' Agent delivers to the Agent a duly completed and executed Accession Letter;

 

(iii)except in the case of the Pre-Approved Borrower, the Obligors' Agent confirms that no Default is continuing or would occur as a result of that member of the Group becoming an Additional Borrower; and

 

(iv)the Agent has received all of the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent (acting reasonably).

 

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(c)The Agent shall notify the Obligors' Agent and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it (acting reasonably)) or waived the requirement to receive, all the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent).

 

(d)At any time on or after the Closing Date, the Pre-Approved Borrower shall become an Additional Borrower if:

 

(i)the Obligors' Agent delivers to the Agent a duly completed and executed Accession Letter;

 

(ii)the Agent has received all of the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent) in relation to the Pre-Approved Borrower, in form and substance satisfactory to the Agent (acting reasonably).

 

The Agent shall notify the Obligors' Agent and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it (acting reasonably)) or waived the requirement to receive, all the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent) in relation to the accession of the Pre-Approved Borrower as an Additional Borrower.

 

28.3Resignation of a Borrower

 

(a)The Obligors' Agent may request that a Borrower ceases to be a Borrower by delivering to the Agent a Resignation Letter.

 

(b)The Agent shall accept a Resignation Letter and notify the Obligors' Agent and the Lenders of its acceptance if:

 

(i)no Default is continuing or would result from the acceptance of the Resignation Letter (and the Obligors' Agent has confirmed this is the case); and

 

(ii)the Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents,

 

whereupon that company shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents.

 

28.4Additional Guarantors

 

(a)Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 23.8 ("Know your customer" checks), the Obligors' Agent may request that any member of the Group becomes an Additional Guarantor.

 

(b)A member of the Group shall become an Additional Guarantor if:

 

(i)the Obligors' Agent delivers to the Agent a duly completed and executed Accession Letter; and

 

(ii)the Agent has received or waived the requirement to receive, all of the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent (acting reasonably).

 

(c)The Agent shall notify the Obligors' Agent and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it (acting reasonably)) or waived the requirement to receive, all the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent).

 

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28.5Accession of Parent

 

(a) On the Closing Date, Smurfit WestRock shall become the Parent if:

 

(i)Smurfit WestRock delivers to the Agent a duly completed and executed Accession Letter;

 

(ii)the Agent has received all of the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent) in relation to Smurfit WestRock, in form and substance satisfactory to the Agent (acting reasonably), to the extent relevant to the accession of the Parent rather than of a Borrower or a Guarantor.

 

(b)The Agent shall notify the Obligors' Agent and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it (acting reasonably)) or waived the requirement to receive, all the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent).

 

28.6Resignation of a Guarantor

 

(a)The Obligors' Agent may request that a Guarantor (other than the Parent (unless it is simultaneously ceasing to be the Parent due to a Permitted Holdco Reorganisation)) ceases to be a Guarantor by delivering to the Agent a Resignation Letter.

 

(b)The Agent shall accept a Resignation Letter and notify the Obligors' Agent and the Lenders of its acceptance if:

 

(i)the Obligors' Agent has confirmed that such Guarantor is not also a Borrower (or at the same time as ceasing to be a Guarantor it also ceases to be a Borrower); and

 

(ii)no Default is continuing or would result from the acceptance of the Resignation Letter (and the Obligors' Agent has confirmed this is the case).

 

28.7Repetition of Representations

 

Delivery of an Accession Letter constitutes confirmation by the person becoming a Party that the Repeating Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.

 

29.The Agent, the Coordinators and the Sustainability Coordinators

 

29.1Appointment of the Agent

 

(a)Each other Finance Party appoints the Agent to act as its agent under and in connection with the Finance Documents.

 

(b)Each other Finance Party authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

 

29.2Duties of the Agent

 

(a)The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.

 

(b)Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.

 

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(c)Without prejudice to Clause 27.7 (Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation), paragraph (b) above shall not apply to any Transfer Certificate, any Assignment Agreement or any Increase Confirmation.

 

(d)Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

 

(e)If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Finance Parties.

 

(f)If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Coordinators) under this Agreement it shall promptly notify the other Finance Parties.

 

29.3Role of the Coordinators

 

Except as specifically provided in the Finance Documents, the Coordinators have no obligations of any kind to any other Party under or in connection with any Finance Document.

 

29.4No fiduciary duties

 

(a)Nothing in any Finance Document constitutes the Agent, the Coordinators or any Sustainability Coordinator(s) as a trustee, agent or fiduciary of any other person.

 

(b)None of the Agent, the Coordinators, any Sustainability Coordinator(s) or any Ancillary Lender shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

 

(c)The Sustainability Coordinator(s) may rely on this Clause 29.4 subject to Clause 1.6 (Third party rights) and the provisions of the Third Parties Act.

 

29.5Business with the Group

 

The Agent, the Coordinators and each Ancillary Lender may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

 

29.6Rights and discretions of the Agent

 

(a)The Agent may rely on:

 

(i)any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and

 

(ii)any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within their knowledge or within their power to verify.

 

(b)The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:

 

(i)no Default has occurred (unless it has actual knowledge of a Default arising under Clause 26.1 (Non-payment));

 

(ii)any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and

 

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(iii)any notice or request made by the Obligors' Agent is made on behalf of and with the consent and knowledge of all the Obligors.

 

(c)The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.

 

(d)The Agent may act in relation to the Finance Documents through its personnel and agents.

 

(e)The Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

 

(f)Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent or the Coordinators is obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

 

29.7Majority Lenders' instructions

 

(a)Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.

 

(b)Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.

 

(c)The Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.

 

(d)In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.

 

(e)The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.

 

29.8Responsibility for documentation

 

(a)None of the Agent nor any Coordinator or Sustainability Coordinator(s) is responsible or liable for:

 

(i)the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Coordinators, an Ancillary Lender, the Sustainability Coordinator(s), an Obligor or any other person given in or in connection with any Finance Document;

 

(ii)the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, or in connection with any Finance Document; or

 

(iii)any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.

 

(b)Neither the Agent nor any Sustainability Coordinator is responsible or liable for the adequacy, accuracy or completeness of any Sustainability Information (whether oral or written) supplied by the Parent, any member of the Group, a Sustainability Auditor or any other person in or in connection with any Sustainability Report, any Verification Report and/or any sustainability provisions contemplated in this Agreement or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any SLL Facility.

 

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(c)The Sustainability Coordinator(s) may rely on this Clause 29.8 subject to Clause 1.6 (Third party rights) and the provisions of the Third Parties Act.

 

29.9No duty to monitor

 

The Agent shall not be bound to enquire:

 

(a)whether or not any Default has occurred;

 

(b)as to the performance, default or any breach by any Party of its obligations under any Finance Document;

 

(c)whether any other event specified in any Finance Document has occurred;

 

(d)whether or not any Declassification Event, Sustainability Breach, Sustainability Amendment Event or a Sustainability Compliance Certificate Inaccuracy has occurred; or

 

(e)as to the performance, default or any breach by any Obligor of its obligations under any Sustainability Provision.

 

29.10Exclusion of liability

 

(a)Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent), the Agent will not be liable for:

 

(i)any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct;

 

(ii)exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or

 

(iii)without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of:

 

(A)any act, event or circumstance not reasonably within its control; or

 

(B)the general risks of investment in, or the holding of assets in, any jurisdiction,

 

including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.

 

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(b)No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this paragraph (b) for the purposes of the Third Parties Act.

 

(c)The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.

 

(d)Nothing in this Agreement shall oblige the Agent or the Coordinators to carry out:

 

(i)any "know your customer" or other checks in relation to any person; or

 

(ii)any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any Affiliate of any Lender,

 

on behalf of any Lender, and each Lender confirms to the Agent and the Coordinators that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Coordinators.

 

(e)Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.

 

(f)Neither the Agent nor any Coordinator or Sustainability Coordinator is acting in an advisory capacity to any person in respect of the SLLP nor will the Agent or any Coordinator or Sustainability Coordinator be obliged to verify whether any Facility will comply with the SLLP on behalf of any of the Finance Parties. Each Finance Party is solely responsible at all times for making its own independent appraisal of, and analysis in relation to, each KPI, each SPT, the Sustainability Information and any other sustainability-linked provision of this Agreement.

 

(g)No Sustainability Coordinator will be liable for any action taken or not taken by it under or in connection with any Finance Document in such capacity, unless directly caused by its gross negligence or wilful misconduct.

 

(h)No Party may take any proceedings against any officer, employee or agent of any Sustainability Coordinator in respect of any claim it might have against the Sustainability Coordinator or in respect of any act or omission of any kind by that officer, employee or agent in connection with Facility B.

 

(i)The Sustainability Coordinator(s) and any officer, employee or agent of the Sustainability Coordinator(s) may rely on this Clause 29.10 subject to Clause 1.6 (Third party rights) and the provisions of the Third Parties Act.

 

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29.11Lenders' indemnity to the Agent

 

Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 32.11 (Disruption to payment systems etc), notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).

 

29.12Resignation of the Agent

 

(a)The Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom or Ireland as successor by giving notice to the other Finance Parties and the Obligors' Agent.

 

(b)Alternatively the Agent may resign by giving 30 days' notice to the other Finance Parties and the Obligors' Agent, in which case the Majority Lenders (after consultation with the Obligors' Agent) may appoint a successor Agent.

 

(c)If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Obligors' Agent) may appoint a successor Agent (acting through an office in the United Kingdom or Ireland).

 

(d)The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.

 

(e)The Agent's resignation notice shall only take effect upon the appointment of a successor.

 

(f)Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 29. Any successor and each of the other Parties shall have the same rights and obligations among themselves as they would have had if such successor had been an original Party.

 

(g)After consultation with the Obligors' Agent, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.

 

(h)The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:

 

(i)the Agent fails to respond to a request under Clause 16.9 (FATCA information) and the Obligors' Agent or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

 

(ii)the information supplied by the Agent pursuant to Clause 16.9 (FATCA information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

 

(iii)the Agent notifies the Obligors' Agent and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

 

and (in each case) the Obligors' Agent or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and the Obligors' Agent or that Lender, by notice to the Agent, requires it to resign.

 

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29.13Replacement of the Agent

 

(a)After consultation with the Obligors' Agent, the Majority Lenders may, by giving 30 days' notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent (acting through an office in the United Kingdom or Ireland).

 

(b)The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.

 

(c)The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of Clause 18.3 (Indemnity to the Agent) and this Clause 29 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).

 

(d)Any successor Agent and each of the other Parties shall have the same rights and obligations among themselves as they would have had if such successor had been an original Party.

 

29.14Confidentiality

 

(a)In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.

 

(b)If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.

 

29.15Relationship with the Lenders

 

(a)Subject to Clause 27.11 (Pro rata interest settlement), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:

 

(i)entitled to or liable for any payment due under any Finance Document on that day; and

 

(ii)entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,

 

unless it has received not less than five Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

 

(b)Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address and (where communication by electronic mail or other electronic means is permitted under Clause 34.6 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, electronic mail address, department and officer by that Lender for the purposes of Clause 34.2 (Addresses) and paragraph (a)(ii) of Clause 34.6 (Electronic communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.

 

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29.16Credit appraisal by the Lenders and Ancillary Lenders

 

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender and Ancillary Lender confirms to the Agent, the Coordinators and each Ancillary Lender that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:

 

(a)the financial condition, status and nature of each member of the Group;

 

(b)the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

 

(c)whether that Lender or Ancillary Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document; and

 

(d)the adequacy, accuracy or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.

 

29.17Deduction from amounts payable by the Agent

 

If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.

 

29.18Swingline Agent

 

(a)The Agent may perform its duties in respect of the Swingline Facility through an Affiliate acting as its agent.

 

(b)Notwithstanding any other term of this Agreement and without limiting the liability of any Obligor under the Finance Documents, each Lender shall (in proportion to its share of the Total Facility B Commitments or, if the Total Facility B Commitments are then zero, to its share of the Total Facility B Commitments immediately prior to their reduction to zero) pay to or indemnify the Agent, within three Business Days of demand, for or against any cost, loss or liability including, without limitation, for negligence or any other category of loss whatsoever incurred by the Agent or its Affiliate (other than by reason of the Agent's or the Affiliate's gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 32.11 (Disruption to payment systems etc) notwithstanding the Agent's or the Affiliate's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent or the Affiliate in acting as Agent for the Swingline Facility under the Finance Documents (unless the Agent or its Affiliate has been reimbursed by an Obligor pursuant to a Finance Document).

 

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29.19Amounts paid in error

 

(a)If the Agent pays an amount to another Party, and within 10 Business Days of making the payment the Agent notifies that Party that such payment was an Erroneous Payment, then the Party to whom that amount was paid by the Agent shall on demand refund the same to the Agent.

 

(b)Neither:

 

(i)the obligations of any Party to the Agent; nor

 

(ii)the remedies of the Agent,

 

(whether arising under this Clause 29.19 or otherwise) which relate to an Erroneous Payment will be affected by any act, omission, matter or thing which, but for this paragraph (b), would reduce, release or prejudice any such obligation or remedy (whether or not known by the Agent or any other Party).

 

(c)All payments to be made by a Party to the Agent (whether made pursuant to this Clause 29.19 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

 

(d)In this Agreement, Erroneous Payment means a payment of an amount by the Agent to another Party which the Agent determines (acting reasonably) was made in error.

 

30.Conduct of Business by the Finance Parties

 

No provision of this Agreement will:

 

(a)interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

 

(b)oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

 

(c)oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

 

31.Sharing among the Finance Parties

 

31.1Payments to Finance Parties

 

(a)Subject to paragraph (b) below, if a Finance Party (a Recovering Finance Party) receives or recovers any amount from an Obligor other than in accordance with Clause 32 (Payment Mechanics) (a Recovered Amount) and applies that amount to a payment due under the Finance Documents then:

 

(i)the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent;

 

(ii)the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 32 (Payment Mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

 

(iii)the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the Sharing Payment) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 32.6 (Partial payments).

 

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(b)Paragraph (a) above shall not apply to any amount received or recovered by an Ancillary Lender in respect of any cash cover provided for the benefit of that Ancillary Lender.

 

31.2Redistribution of payments

 

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the Sharing Finance Parties) in accordance with Clause 32.6 (Partial payments) towards the obligations of that Obligor to the Sharing Finance Parties.

 

31.3Recovering Finance Party's rights

 

On a distribution by the Agent under Clause 31.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor.

 

31.4Reversal of redistribution

 

If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

 

(a)each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the Redistributed Amount); and

 

(b)as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.

 

31.5Exceptions

 

(a)This Clause 31 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause 31, have a valid and enforceable claim against the relevant Obligor.

 

(b)A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:

 

(i)it notified that other Finance Party of the legal or arbitration proceedings; and

 

(ii)that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

 

31.6Ancillary Lenders

 

(a)This Clause 31 shall not apply to any receipt or recovery by a Lender in its capacity as an Ancillary Lender at any time prior to service of notice under Clause 26.12 (Acceleration).

 

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(b)Following service of notice under Clause 26.12 (Acceleration), this Clause 31 shall apply to all receipts or recoveries by Ancillary Lenders except to the extent that the receipt or recovery represents a reduction of the Permitted Gross Outstandings of a Multi-account Overdraft to or towards an amount equal to its Designated Net Amount.

 

32.Payment Mechanics

 

32.1Payments to the Agent

 

(a)On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, excluding a payment under the terms of an Ancillary Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

 

(b)Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London, as specified by the Agent) with such bank as the Agent specifies.

 

32.2Distributions by the Agent

 

Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 32.3 (Distributions to an Obligor) and Clause 32.4 (Clawback and pre-funding) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days' notice with a bank in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London).

 

32.3Distributions to an Obligor

 

The Agent may (with the consent of the Obligor or in accordance with Clause 33 (Set-Off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

 

32.4Clawback and pre-funding

 

(a)Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.

 

(b)Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.

 

(c)If the Agent has notified the Lenders that it is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower:

 

(i)the Agent shall notify the Obligors' Agent of that Lender's identity and the Borrower to whom that sum was made available shall on demand refund it to the Agent; and

 

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(ii)the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.

 

32.5Impaired Agent

 

(a)If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 32.1 (Payments to the Agent) may instead either:

 

(i)pay that amount direct to the required recipient(s); or

 

(ii)if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the Paying Party) and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the Recipient Party or Recipient Parties).

 

In each case such payments must be made on the due date for payment under the Finance Documents.

 

(b)All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements.

 

(c)A Party which has made a payment in accordance with this Clause 32.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.

 

(d)Promptly upon the appointment of a successor Agent in accordance with Clause 29.13 (Replacement of the Agent), each Paying Party shall (other than to the extent that that Party has given an instruction pursuant to paragraph (e) below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 32.2 (Distributions by the Agent).

 

(e)A Paying Party shall, promptly upon request by a Recipient Party and to the extent:

 

(i)that it has not given an instruction pursuant to paragraph (d) above; and

 

(ii)that it has been provided with the necessary information by that Recipient Party,

 

give all requisite instructions to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that Recipient Party.

 

32.6Partial payments

 

(a)If the Agent receives a payment (other than a payment in respect of the Swingline Facility) that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents (other than in respect of the Swingline Facility), the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

 

(i)first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent under the Finance Documents;

 

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(ii)secondly, in or towards payment pro rata of any accrued interest, fee or commission which is due but unpaid;

 

(iii)thirdly, in or towards payment pro rata of any principal which is due but unpaid; and

 

(iv)fourthly, in or towards payment pro rata of any other amount which is due but unpaid.

 

The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (ii) to (iv) above.

 

(b)If the Agent receives a payment in respect of the Swingline Facility that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents in respect of the Swingline Facility, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in respect of the Swingline Facility in the following order:

 

(i)first, in or towards payment pro rata of any unpaid amount owing to the Agent or its Affiliate under the Finance Documents in respect of the Swingline Facility;

 

(ii)secondly, in or towards payment pro rata of any accrued interest on a Swingline Loan which is due but unpaid;

 

(iii)thirdly, in or towards payment pro rata of the principal of any Swingline Loan which is due but unpaid;

 

(iv)fourthly, in or towards payment pro rata of any other amount which is due but unpaid in respect of the Swingline Facility; and

 

(v)fifthly, in or towards any other amount which is due but unpaid under the Finance Documents, in the order set out in paragraphs (i) to (iv) of paragraph (a) above.

 

(c)The Agent shall, if so directed by the Swingline Lenders, vary the order set out in paragraphs (ii) to (iv) above.

 

(d)Paragraphs (a) and (b) above will override any appropriation made by an Obligor.

 

(e)This Clause 32 shall not affect the right of the Lenders to claim any other amount due to them under the Finance Documents.

 

32.7No set-off by Obligors

 

All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

 

32.8Business Days

 

(a)Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

 

(b)During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

 

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32.9Currency of account

 

(a)Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.

 

(b)A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated on its due date.

 

(c)Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.

 

(d)Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

 

(e)Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency.

 

32.10Change of currency

 

(a)Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:

 

(i)any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Obligors' Agent); and

 

(ii)any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).

 

(b)If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Obligors' Agent) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency.

 

32.11Disruption to payment systems etc

 

If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Obligors' Agent that a Disruption Event has occurred:

 

(a)the Agent may, and shall if requested to do so by the Obligors' Agent, consult with the Obligors' Agent with a view to agreeing with the Obligors' Agent such changes to the operation or administration of the Facilities as the Agent may deem necessary in the circumstances;

 

(b)the Agent shall not be obliged to consult with the Obligors' Agent in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;

 

(c)the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;

 

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(d)any such changes agreed upon by the Agent and the Obligors' Agent shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 38 (Amendments and Waivers);

 

(e)the Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 32.11; and

 

(f)the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.

 

33.Set-Off

 

(a)A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

 

(b)Any credit balances taken into account by an Ancillary Lender when operating a net limit in respect of any overdraft under an Ancillary Facility shall on enforcement of the Finance Documents be applied first in reduction of the overdraft provided under that Ancillary Facility in accordance with its terms.

 

34.Notices

 

34.1Communications in writing

 

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by letter or as specified in Clause 34.6 (Electronic communication)) electronic mail or other electronic means.

 

34.2Addresses

 

The address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

 

(a)in the case of the Obligors:

 

Address:Smurfit Kappa
   
  Beech Hill, Clonskeagh, Dublin 4, Ireland
   
 Attention:Emer Murnane
   
Email:[           ]

 

Tel:[           ]

 

(b)in the case of each Lender, each Ancillary Lender or any other Original Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and

 

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(c)in the case of the Agent:

 

 Address:Wells Fargo Bank, National Association
   
  MAC D1109-019, 1525 West W.T. Harris Blvd
   
  Charlotte, NC  28262, USA
   
 Attention:Syndicated Agency Services
   
Email:[           ]

 

Tel:[           ]

 

or any substitute address or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days' notice.

 

34.3Delivery

 

(a)Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective: or

 

(i)if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;

 

(ii)and, if a particular department or officer is specified as part of its address details provided under Clause 34.2 (Addresses), if addressed to that department or officer.

 

(b)Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).

 

(c)All notices from or to an Obligor shall be sent through the Agent.

 

(d)Any communication or document made or delivered to the Obligors' Agent in accordance with this Clause 34.3 will be deemed to have been made or delivered to each of the Obligors.

 

(e)Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5pm in the place of receipt shall be deemed only to become effective on the following day.

 

34.4Notification of address

 

Promptly upon receipt of notification of an address or change of address pursuant to Clause 34.2 (Addresses) or changing its own address, the Agent shall notify the other Parties.

 

34.5Communication when Agent is Impaired Agent

 

If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed.

 

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34.6Electronic communication

 

(a)Any communication to be made or delivered by one Party to another under or in connection with the Finance Documents may be made or delivered by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication) and if those two Parties:

 

(i)notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and

 

(ii)notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.

 

(b)Any electronic communication specified in paragraph (a) above made or delivered by one Party to another will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose.

 

(c)Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5pm in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.

 

(d)Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 34.6.

 

34.7English language

 

(a)Any notice given under or in connection with any Finance Document must be in English.

 

(b)All other documents provided under or in connection with any Finance Document must be:

 

(i)in English; or

 

(ii)if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.

 

35.Calculations and Certificates

 

35.1Accounts

 

In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.

 

35.2Certificates and determinations

 

Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.

 

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35.3Day count convention and interest calculation

 

(a)Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the amount of any such interest, commission or fee is calculated:

 

(i)on the basis of the actual number of days elapsed and a year of 360 days (or, in any case where the practice in the Relevant Market differs, in accordance with that market practice); and

 

(ii)subject to paragraph (b) below, without rounding.

 

(b)The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by an Obligor under a Finance Document shall be rounded to two decimal places.

 

35.4Interest Act (Canada) Compliance

 

Solely for the purposes of the Interest Act (Canada) and disclosure thereunder (if and to the extent applicable), whenever any interest or any fee to be paid under any Finance Document is to be calculated on the basis of a 360-day or 365-day year (or 366-day year, as the case may be), the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360 or 365 (or 366), as applicable.

 

36.Partial Invalidity

 

If, at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

 

37.Remedies and Waivers

 

No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under a Finance Document shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any Finance Document on the part of any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

 

38.Amendments and Waivers

 

38.1Required consents

 

(a)Subject to Clause 38.2 (Exceptions) and Clause 38.4 (Snooze/lose), any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.

 

(b)The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 38.

 

(c)Each Obligor agrees to any such amendment or waiver permitted by this Clause 38 which is agreed to by the Obligors' Agent. This includes any amendment or waiver which would, but for this paragraph (c) require the consent of all Obligors.

 

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38.2Exceptions

 

(a)Subject to Clause 38.8 (Changes to reference rates), an amendment or waiver that has the effect of changing or which relates to:

 

(i)the definition of Majority Lenders in Clause 1.1 (Definitions);

 

(ii)Clause 31 (Sharing among the Finance Parties);

 

(iii)a change to the Borrowers or Guarantors other than in accordance with Clause 28 (Changes to the Obligors);

 

(iv)any provision which expressly requires the consent of all the Lenders;

 

(v)Clause 2.3 (Finance Parties' rights and obligations), Clause 27 (Changes to the Lenders), or this Clause 38;

 

(vi)the nature or scope of the guarantee and indemnity granted under Clause 21 (Guarantee and Indemnity),

 

shall not be made without the prior consent of all the Lenders.

 

(b)Subject to paragraphs (g) and (i) below and to Clause 38.3 (Sustainability Amendment Event), an amendment or waiver that has the effect of changing or which relates to:

 

(i)an extension to the date of payment of any amount under the Finance Documents;

 

(ii)a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;

 

(iii)an increase in or an extension of any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the relevant Facility; or

 

(iv)a redenomination of any Commitment,

 

shall not be made without the prior consent of:

 

(A)each Lender that is assuming an additional Commitment or an increased Commitment or whose Commitment is being extended or redenominated, or to whom any amount is due and payable which is being reduced or extended (as the case may be) (an Affected Lender); and

 

(B)in the case of an increase in any Commitment, the Majority Lenders (where, for these purposes, the Commitments of the Affected Lenders shall be included in the determination of the Majority Lenders).

 

(c)An amendment or waiver which relates to the rights or obligations of the Agent, the Coordinators or any Ancillary Lender may not be effected without the consent of the Agent, the Coordinators or that Ancillary Lender (as the case may be).

 

(d)Any amendments to implement any limitation on any guarantee as contemplated by the Guarantee Principles and any consequential amendments, in each case, in accordance with paragraph 7 of Schedule 11 (Guarantee Principles) may be made or effected by the Obligors' Agent and the Agent without the consent of any other Party (and shall be binding on all Parties).

 

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(e)Any term of the Finance Documents (other than any Ancillary Document) may be amended or waived by the Obligors' Agent and the Agent without the consent of any other Party if that amendment or waiver is:

 

(i)to cure defects or omissions, resolve ambiguities or inconsistencies or reflect changes of a minor, technical or administrative nature; or

 

(ii)otherwise for the benefit of all or any of the Lenders.

 

(f)Notwithstanding anything to the contrary, any amendment or waiver of any Finance Document made or effected in accordance with Clause 2.2 (Increase after cancellation) shall be binding on all Parties.

 

(g)If, as a result of an extension of the Termination Date in accordance with Clause 9.4 (Extension of Termination Date) different Termination Dates apply in respect of certain Lenders, any conforming amendments required as a result of the extension of the Termination Date may be made by the Obligors' Agent and the Agent (and the Agent is authorised by all of the Lenders to make such changes).

 

(h)Any amendment or waiver which:

 

(i)relates only to the rights or obligations applicable to a particular Utilisation or Facility; and

 

(ii)does not materially and adversely affect the rights or interests of Lenders in respect of any other Utilisation or Facility,

 

may be made in accordance with this Clause 38 (Amendments and Waivers) but as if references in this Clause 38 (Amendments and Waivers) to the specified proportion of Lenders (including the Affected Lenders) whose consent would, but for this paragraph (h), be required for that amendment or waiver, were instead to the proportion of the Lenders participating in that particular Utilisation or Facility.

 

(i)An amendment or waiver:

 

(i)that has the effect of changing or which relates to a reduction in the Margin in connection with Clause 12.6 (Margin adjustments - sustainability);

 

(ii)that makes it less onerous for the Obligors to achieve a reduction in the Margin pursuant to Clause 12.6 (Margin adjustments - sustainability); or

 

(iii)otherwise with respect to the KPIs, SPTs or any other Sustainability Provision,

 

may be made with the consent of the Agent (acting on the instructions of the Majority Facility B Lenders).

 

38.3Sustainability Amendment Event

 

(a)If a Sustainability Amendment Event has occurred (or is reasonably likely to occur) the Parent (or the Obligors' Agent) may elect (in any manner acting reasonably) to calculate the relevant KPIs on an unconsolidated basis (or otherwise on a basis which does not take into account such Sustainability Amendment Event) for a period of not more than two years from the end of the SLL Reference Period in which such election was first made.

 

(b)If a Sustainability Amendment Event has occurred (or is reasonably likely to occur), the Sustainability Coordinators shall, upon the request of the Parent (or the Obligors' Agent), enter into negotiations in good faith for a period of not more than 30 days (or such other period as agreed between the Obligors' Agent and the Sustainability Coordinators) with a view to agreeing such amendments to any Calculation Methodology, KPI, SPT and/or any related terms of this Agreement as are necessary for the purposes of eliminating, accommodating or otherwise taking into account the effect of the relevant Sustainability Amendment Event on the terms of this Agreement (together, the Sustainability Amendments).

 

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(c)Any Sustainability Amendments referred to in paragraph (b) above may be made with the consent of the Obligors' Agent, the Sustainability Coordinators and the Majority Facility B Lenders, and shall be binding on all Parties.

 

38.4Snooze/lose

 

If:

 

(a)any Defaulting Lender fails to accept or reject a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote of Lenders under the terms of this Agreement within ten Business Days of that request being made; or

 

(b)any Lender which is not a Defaulting Lender fails to respond to such a request or other such vote within 15 Business Days of that request being made,

 

(unless, in either case, the Obligors' Agent and the Agent agree to a longer time period in relation to any request):

 

(i)its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facilities when ascertaining whether any relevant percentage (including unanimity) of Total Commitments has been obtained to approve that request; and

 

(ii)its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.

 

38.5Replacement of Lender

 

(a)If

 

(i)an Obligor becomes obliged to repay any amount in accordance with Clause 10.2 (Illegality) or to pay additional amounts pursuant to Clause 17 (Increased Costs), Clause 16.2 (Tax gross-up) or Clause 16.3 (Tax indemnity) to any Lender; or

 

(ii)a Lender does not consent to an Extension Request pursuant to Clause 9.4 (Extension of Termination Date),

 

the Obligors' Agent may, on five Business Days' prior written notice to the Agent and such Lender and, in respect of a Lender who does not consent to an Extension Request pursuant to Clause 9.4 (Extension of Termination Date), within 18 months after the date that Lender confirms it does not consent, or is deemed not to consent, to the applicable Extension Request, replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 27 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to one or more Lenders and/or any other bank, financial institution, trust, fund or other entity (in case which is an Eligible Institution) (a Replacement Lender) selected by the Obligors' Agent, which confirms its or their willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 27 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest (to the extent that the Agent has not given a notification under Clause 27.11 (Pro rata interest settlement)), Break Costs and other amounts payable to that Lender thereto under the Finance Documents.

 

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(b)The replacement of a Lender pursuant to this Clause 38.5 shall be subject to the following conditions:

 

(i)the Obligors' Agent shall have no right to replace the Agent pursuant to this Clause 38.5;

 

(ii)neither the Agent nor the Lender shall have any obligation to any Obligor to find a Replacement Lender;

 

(iii)in no event shall the Lender replaced under this Clause 38.5 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents;

 

(iv)the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) above once it is satisfied (acting reasonably) that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer; and

 

(v)the Lender shall not be obliged to transfer its rights and obligations pursuant to paragraph (a) to the extent that the transfer would result in that Lender (or its Affiliate) failing to meet the requirement set out in paragraph (h) of Clause 27.2 (Conditions of assignment or transfer).

 

(c)A Lender shall perform the checks described in paragraph (b)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Obligors' Agent when it is satisfied (acting reasonably) that it has complied with those checks.

 

38.6Disenfranchisement of Defaulting Lenders

 

(a)For so long as a Defaulting Lender has any Available Commitment, in ascertaining:

 

(i)the Majority Lenders; or

 

(ii)whether:

 

(A)any given percentage (including unanimity) of the Total Commitments under the relevant Facilities; or

 

(B)the agreement of any specified group of Lenders,

 

has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents, that Defaulting Lender's Commitments under the relevant Facilities will be reduced by the amount of its Available Commitments under the relevant Facilities and, to the extent that that reduction results in that Defaulting Lender's Total Commitments being zero, that Defaulting Lender shall be deemed not to be a Lender for the purposes of paragraphs (i) and (ii) above.

 

(b)For the purposes of this Clause 38.6, the Agent may assume that the following Lenders are Defaulting Lenders:

 

(i)any Lender which has notified the Agent that it has become a Defaulting Lender;

 

(ii)any Lender in relation to which it is aware that any of the events or circumstances referred to in the definition of Defaulting Lender has occurred,

 

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unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.

 

38.7Replacement of a Defaulting Lender

 

(a)The Obligors' Agent may, at any time a Lender has become and continues to be a Defaulting Lender, by giving five Business Days' prior written notice to the Agent and such Lender:

 

(i)replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 27 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement;

 

(ii)require such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 27 (Changes to the Lenders) all (and not part only) of the undrawn Commitment of the Lender; or

 

(iii)require such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 27 (Changes to the Lenders) all (and not part only) of its rights and obligations in respect of the Facility,

 

to a Lender or other bank, financial institution, trust, fund or other entity (a Replacement Lender) which is an Eligible Institution and is selected by the Obligors' Agent, which confirms its willingness to assume and does assume all the obligations, or all the relevant obligations, of the transferring Lender in accordance with Clause 27 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer which is either:

 

(A)in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest (to the extent that the Agent has not given a notification under Clause 27.11 (Pro rata interest settlement), Break Costs and other amounts payable in relation thereto under the Finance Documents; or

 

(B)in an amount agreed between that Defaulting Lender, the Replacement Lender and the Obligors' Agent and which does not exceed the amount described in paragraph (A) above.

 

(b)Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 38.7 shall be subject to the following conditions:

 

(i)the Obligors' Agent shall have no right to replace the Agent pursuant to this Clause 38.7;

 

(ii)neither the Agent nor the Defaulting Lender shall have any obligation to any Obligor to find a Replacement Lender;

 

(iii)the transfer must take place no later than 30 days after the notice referred to in paragraph (a) above;

 

(iv)in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; and

 

(v)the Defaulting Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) above once it is satisfied (acting reasonably) that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer to the Replacement Lender.

 

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(c)The Defaulting Lender shall perform the checks described in paragraph (b)(v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Obligors' Agent when it is satisfied that it has complied with those checks.

 

38.8Changes to reference rates

 

(a)Subject to paragraph (c) of Clause 38.2 (Exceptions), if a Published Rate Replacement Event has occurred in relation to any Published Rate for a currency which can be selected for a Loan, any amendment or waiver which relates to:

 

(i)providing for the use of a Replacement Reference Rate in relation to that currency in place of that Published Rate; and

 

(ii)(A) aligning any provision of any Finance Document to the use of that Replacement Reference Rate;

 

(B)enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the purposes of this Agreement);

 

(C)implementing market conventions applicable to that Replacement Reference Rate;

 

(D)providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or

 

(E)adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),

 

may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Obligors.

 

(b)An amendment or waiver that relates to, or has the effect of, aligning the means of calculation of interest on a Compounded Rate Loan in any currency under this Agreement to any recommendation of a Relevant Nominating Body which:

 

(i)relates to the use of the RFR for that currency on a compounded basis in the international or any relevant domestic syndicated loan markets; and

 

(ii)is issued on or after the date of this Agreement,

 

may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Obligors.

 

(c)If any Lender fails to respond to a request for an amendment or waiver described in paragraphs (a) or (b) above within 15 Business Days (or such longer time period in relation to any request which the Obligors' Agent and the Agent may agree) of that request being made:

 

(i)its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility/ies when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and

 

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(ii)its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.

 

(d)In this Clause 38.8:

 

Published Rate means:

 

(i)the Screen Rate for any Quoted Tenor; or

 

(ii)an RFR.

 

Published Rate Replacement Event means, in relation to a Published Rate:

 

(i)the methodology, formula or other means of determining that Published Rate has, in the opinion of the Majority Lenders, and the Obligors materially changed;

 

(ii)(A) (1) the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or

 

(2)information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Published Rate is insolvent,

 

provided that, in each case, at that time, there is no successor administrator to continue to provide that Published Rate;

 

(B)the administrator of that Published Rate publicly announces that it has ceased or will cease to provide that Published Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Published Rate;

 

(C)the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently or indefinitely discontinued;

 

(D)the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used; or

 

(E)in the case of the Screen Rate for any Quoted Tenor, the supervisor of the administrator of that Screen Rate makes a public announcement or publishes information:

 

(1)stating that that Screen Rate for that Quoted Tenor is no longer, or as of a specified future date will no longer be, representative of the underlying market or economic reality that it is intended to measure and that representativeness will not be restored (as determined by such supervisor); and

 

(2)with awareness that any such announcement or publication will engage certain triggers for fallback provisions in contracts which may be activated by any such pre-cessation announcement or publication; or

 

(3)the administrator of that Published Rate (or the administrator of an interest rate which is a constituent element of that Published Rate) determines that that Published Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and the circumstances or events leading to such determination are not (in the opinion of the Majority Lenders and the Obligors) temporary; or

 

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(iii)in the opinion of the Majority Lenders and the Obligors, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.

 

Relevant Nominating Body means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.

 

Replacement Reference Rate means a reference rate which is:

 

(i)formally designated, nominated or recommended as the replacement for a Published Rate by:

 

(A)the administrator of that Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate); or

 

(B)any Relevant Nominating Body,

 

and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs (A) and (B) above, the "Replacement Reference Rate" will be the replacement under paragraph (B) above;

 

(ii)in the opinion of the Majority Lenders and the Obligors, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Published Rate; or

 

(iii)in the opinion of the Majority Lenders and the Obligors, an appropriate successor to a Published Rate.

 

39.Confidential Information

 

39.1Confidentiality

 

Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 39.2 (Disclosure of Confidential Information) and Clause 39.3 (Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.

 

39.2Disclosure of Confidential Information

 

Any Finance Party may disclose:

 

(a)to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;

 

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(b)to any person:

 

(i)to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers;

 

(ii)with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;

 

(iii)appointed by any Finance Party or by a person to whom paragraph (i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (b) of Clause 29.15 (Relationship with the Lenders));

 

(iv)who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (i) or (ii) above;

 

(v)to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;

 

(vi)to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;

 

(vii)to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 27.10 (Security over Lenders' rights);

 

(viii)who is a Party; or

 

(ix)with the consent of the Obligors' Agent,

 

in each case, such Confidential Information as that Finance Party shall consider appropriate if:

 

(A)in relation to paragraphs (i), (ii) and (iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking (except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information) and that person is informed that some or all of such Confidential Information may be price-sensitive information;

 

(B)in relation to paragraph (iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; or

 

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(C)in relation to paragraphs (v), (vi) and (vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;

 

(c)to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Obligors' Agent and the relevant Finance Party and if that service provider is informed that some or all of such Confidential Information may be price-sensitive information; and

 

(d)to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.

 

39.3Disclosure to numbering service providers

 

(a)Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facilities and/or one or more Obligors the following information:

 

(i)the names of the Obligors;

 

(ii)the country of domicile of the Obligors;

 

(iii)the jurisdiction of incorporation of the Obligors;

 

(iv)the date of this Agreement;

 

(v)the names of the Agent and the Coordinators;

 

(vi)the date of each amendment and restatement of this Agreement;

 

(vii)the amount of Total Commitments;

 

(viii)the currencies of the Facilities;

 

(ix)the type, names and amounts of Facilities;

 

(x)the ranking of the Facilities;

 

(xi)the Termination Date for the Facilities;

 

(xii)the governing law of this Agreement;

 

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(xiii)changes to any of the information previously supplied pursuant to paragraphs (i) to (xi) above; and

 

(xiv)such other information agreed between such Finance Party and the Obligors' Agent,

 

to enable such numbering service provider to provide its usual syndicated loan numbering identification services.

 

(b)The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.

 

(c)The Agent shall notify the Obligors' Agent and the other Finance Parties of:

 

(i)the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facilities and/or one or more Obligors; and

 

(ii)the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Obligors by such numbering service provider.

 

39.4Entire agreement

 

This Clause 39 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.

 

39.5Inside information

 

(a)Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse.

 

(b)Each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose and agrees with the Obligors' Agent that, without prejudice to the obligations of the Obligors' Agent or any other member of the Group to deliver or provide information to the Finance Parties as required by any Finance Document, there shall be no requirement, pursuant to this Agreement or otherwise, for the Obligors' Agent or any other member of the Group to publish or otherwise make public any unpublished price-sensitive or inside information or any other information which if known to the public would be likely to have an effect on the price of securities issued by any member of the Group (unless otherwise agreed by the Obligors' Agent).

 

39.6Notification of disclosure

 

Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Obligors' Agent:

 

(a)of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 39.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

 

(b)upon becoming aware that Confidential Information has been disclosed in breach of this Clause 39.

 

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39.7Continuing obligations

 

The obligations in this Clause 39 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 Months from the earlier of:

 

(a)the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and

 

(b)the date on which such Finance Party otherwise ceases to be a Finance Party.

 

40.Confidentiality of Funding Rates

 

40.1Confidentiality and disclosure

 

(a)The Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below.

 

(b)The Agent may disclose:

 

(i)any Funding Rate to the relevant Borrower pursuant to Clause 12.8 (Notifications of rates of interest); and

 

(ii)any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender.

 

(c)The Agent may disclose any Funding Rate, and each Obligor may disclose any Funding Rate, to:

 

(i)any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it;

 

(ii)any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;

 

(iii)any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and

 

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(iv)any person with the consent of the relevant Lender.

 

40.2Related obligations

 

(a)The Agent and each Obligor acknowledge that each Funding Rate is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose.

 

(b)The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender:

 

(i)of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 40.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

 

(ii)upon becoming aware that any information has been disclosed in breach of this Clause 40.

 

40.3No Event of Default

 

No Event of Default will occur under Clause 26.2 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 40.

 

41.Bail-In

 

41.1Contractual recognition of bail-in

 

Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:

 

(a)any Bail-In Action in relation to any such liability, including (without limitation):

 

(i)a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;

 

(ii)a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and

 

(iii)a cancellation of any such liability; and

 

(b)a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.

 

41.2Bail-in definitions

 

In this Clause 41:

 

Article 55 BRRD means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.

 

Bail-In Action means the exercise of any Write-down and Conversion Powers.

 

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Bail-In Legislation means:

 

(a)in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time;

 

(b)in relation to the United Kingdom, the UK Bail-In Legislation; and

 

(c)in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.

 

EEA Member Country means any member state of the European Union, Iceland, Liechtenstein and Norway.

 

EU Bail-In Legislation Schedule means the document described as such and published by the Loan Market Association (or any successor person) from time to time.

 

Resolution Authority means any body which has authority to exercise any Write-down and Conversion Powers.

 

UK Bail-In Legislation means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).

 

Write-down and Conversion Powers means:

 

(a)in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;

 

(b)in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and

 

(c)in relation to any other applicable Bail-In Legislation:

 

(i)any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and

 

(ii)any similar or analogous powers under that Bail-In Legislation.

 

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42.Counterparts

 

Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.

 

43.Governing Law

 

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

44.Enforcement

 

44.1Jurisdiction

 

(a)The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a Dispute).

 

(b)The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

 

(c)Notwithstanding paragraphs (a) and (b) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by local law or permitted by local courts, the Finance Parties may take concurrent proceedings in any number of jurisdictions.

 

44.2Service of process

 

(a)Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):

 

(i)irrevocably appoints Smurfit Kappa UK Limited of Cunard Buildings Water Street, Pier Head, Liverpool, L3 1SF as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document and Smurfit Kappa UK Ltd by its execution of this Agreement, accepts that appointment; and

 

(ii)agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.

 

(b)If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Obligors' Agent (on behalf of all the Obligors) must promptly appoint another agent on terms acceptable to the Agent (acting reasonably and in good faith). Failing this, the Agent may appoint another agent for this purpose.

 

44.3Waiver of immunity

 

Each Obligor irrevocably and unconditionally, to the extent permitted by applicable law:

 

(a)agrees not to claim any sovereign immunity from proceedings brought by a Finance Party against it in relation to a Finance Document and to ensure that no such claim is made on its behalf;

 

(b)consents generally to the giving of relief or the issue of any process in connection with those proceedings; and

 

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(c)waives all rights of sovereign immunity in respect of it or its assets.

 

44.4Waiver of trial by jury

 

Each Party waives any right it may have to a jury trial of any claim or cause of action in connection with any Finance Document or any transaction contemplated by any Finance Document. This Agreement may be filed as a written consent to trial by the court.

 

44.5USA Patriot Act

 

Each Finance Party that is subject to the requirements of the USA Patriot Act and/or the Beneficial Ownership Regulation notifies each Obligor that pursuant to the requirements of the USA Patriot Act and/or the Beneficial Ownership Regulation, as applicable, it is required to obtain, verify and record information that identifies the Obligors, including the name and address of the Obligors and other information that will allow that Finance Party to identify the Obligors in accordance with the USA Patriot Act and/or the Beneficial Ownership Regulation, as applicable. Each Obligor agrees that it will provide each Finance Party with such information as it may request in order for that Finance Party to satisfy the requirements of the USA Patriot Act and/or the Beneficial Ownership Regulation, as applicable, provided that such Finance Party shall provide any Obligor with a reasonable period of time to comply with any such request.

 

THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.

 

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Schedule 1

 

The Original Parties

 

Part 1

 

The Original Obligors

 

Original Borrower Jurisdiction of
incorporation		 Registration
number		 Facility
Smurfit Kappa Treasury Unlimited Company Ireland 177324 Facility A and Facility B
Smurfit Kappa Acquisitions Unlimited Company Ireland 358039 Facility B

 

Original Guarantor Jurisdiction of
incorporation		 Registration number
Smurfit Kappa Treasury Unlimited Company Ireland 177324
Smurfit Kappa Acquisitions Unlimited Company Ireland 358039
Smurfit International B.V. Netherlands 33149443
Smurfit Kappa Group plc Ireland 433527
Smurfit Kappa Investments Limited Ireland 380620
Smurfit Kappa Treasury Funding Designated Activity Company Ireland 239631

 

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Part 2

 

The Original Lenders

 

Original Lender Facility A Commitment Facility B
Commitment		 Treaty passport scheme
reference number and
jurisdiction of tax
residence (if applicable)
Allied Irish Banks plc $24,489,795.92 $183,673,469.39 Ireland,
12/A/15271/DTTP
Banco Santander S.A., Paris branch $24,489,795.92 $183,673,469.39 N/A
Bank of China (Europe) S.A. Dublin Branch $12,244,897.96 $91,836,734.69 Luxembourg,
48/B/258017/DTTP
Barclays Bank PLC $24,489,795.92 $183,673,469.39 N/A
BNP Paribas S.A., Dublin Branch $24,489,795.92 $183,673,469.39 France, 
 5/B/255139/DTTP
Citibank, N.A. $24,489,795.92 $183,673,469.39 United States of America,
13/C/62301/DTTP
Commerzbank Aktiengesellschaft $24,489,795.92 $183,673,469.39 Germany,
7/C/25382/DTTP
Coöperatieve Rabobank U.A. $24,489,795.92 $183,673,469.39 The Netherlands,
1/C/0070166/DTTP
Crédit Agricole Corporate and Investment Bank $19,591,836.70 $146,938,775.48 France,
5/C/0222082/DTTP
Crédit Industriel et Commercial, London Branch $12,244,897.96 $91,836,734.69 N/A
Credit Lyonnais $4,897,959.18 $36,734,693.88 France,
5/C/53145/DTTP
Danske Bank A/S, Irish Branch $24,489,795.92 $183,673,469.39 Denmark,
8/D/316495/DTTP
Deutsche Bank Luxembourg SA $24,489,795.92 $183,673,469.39 Luxembourg,
48/D/72718/DTTP
ING Bank N.V., Dublin Branch $24,489,795.92 $183,673,469.39 The Netherlands,
1/I/70193/DTTP
JPMorgan Chase Bank N.A., London Branch $24,489,795.92 $183,673,469.39 N/A

 

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Lloyds Bank PLC $24,489,795.92 $183,673,469.39 N/A
Mizuho Bank Europe N.V. $24,489,795.92 $183,673,469.39 The Netherlands,
1/M/260444/DTTP
National Westminster Bank Plc $24,489,795.92 $183,673,469.39 N/A
PNC Bank, National Association $24,489,795.92 $183,673,469.39 United States of America,
13/P/63904/DTTP
RBC Europe Limited $12,244,897.96 N/A N/A
Regions Bank $12,244,897.96 $91,836,734.69 United States of America,
13/R/330821/DTTP
Royal Bank of Canada $12,244,897.96 $183,673,469.39 N/A
Scotiabank (Ireland) DAC $24,489,795.92 $183,673,469.39 N/A
Skandinaviska Enskilda Banken AB (publ) $24,489,795.92 $183,673,469.39 Sweden,
73/S/42621/DTTP
Sumitomo Mitsui Banking Corporation, Brussels Branch $24,489,795.92 $183,673,469.39 Japan,  
43/S/274647/DTTP
The Governor and Company of the Bank of Ireland $12,244,897.96 $91,836,734.69 N/A
The Northern Trust Company $12,244,897.96 $91,836,734.69 United States of America,
13/N/60122/DTTP
The Toronto-Dominion Bank, London Branch $24,489,795.92 $183,673,469.39 N/A
Wells Fargo Bank, National Association $24,489,795.92 $183,673,469.39 United States of America,
13/W/61173/DTTP
TOTAL: $600,000,000 4,500,000,000  
   

 

167

 

 

Part 3

 

The Original Swingline Lenders

 

Original Swingline
Lender		 Original Lender which
is its Affiliate (if any)		 Swingline
Commitment		 Treaty passport
scheme reference
number and
jurisdiction of tax
residence (if
applicable)
Banco Santander S.A. Banco Santander S.A., Paris branch $22,222,222.22 N/A
Barclays Bank PLC Barclays Bank PLC $22,222,222.22 N/A
BNP Paribas S.A., Dublin Branch BNP Paribas S.A., Dublin Branch $22,222,222.22 France,
5/B/255139/DTTP
Citibank, N.A. Citibank, N.A. $22,222,222.22 United States of America,
13/C/62301/DTTP
Commerzbank Aktiengesellschaft Commerzbank Aktiengesellschaft $22,222,222.22 Germany,
7/C/25382/DTTP
Coöperatieve Rabobank U.A. Coöperatieve Rabobank U.A. $22,222,222.22 The Netherlands,
1/C/0070166/DTTP
Crédit Agricole Corporate and Investment Bank Crédit Agricole Corporate and Investment Bank $22,222,222.22 France,
5/C/0222082/DTTP
Crédit Industriel et Commercial, London Branch Crédit Industriel et Commercial, London Branch $11,111,111.12 N/A
Danske Bank A/S, Irish Branch Danske Bank A/S, Irish Branch $22,222,222.22 Denmark,
8/D/316495/DTTP
Deutsche Bank AG New York Branch Deutsche Bank Luxembourg SA $22,222,222.22 Germany,
7/D/70006/DTTP
ING Bank N.V., Dublin Branch ING Bank N.V., Dublin Branch $22,222,222.22 The Netherlands,
1/I/70193/DTTP
JPMorgan Chase Bank N.A. JPMorgan Chase Bank N.A., London Branch $22,222,222.22 United States,
13/M/268710/DTTP
Lloyds Bank PLC Lloyds Bank PLC $22,222,222.22 N/A
Mizuho Bank, Ltd. Mizuho Bank Europe N.V. $22,222,222.22 Japan,
43/M/274822/DTTP

 

168

 

 

 Original Swingline
Lender		 Original Lender which
is its Affiliate (if any)		 Swingline
Commitment		 Treaty passport
scheme reference
number and
jurisdiction of tax
residence (if
applicable)
National Westminster Bank Plc National Westminster Bank Plc $22,222,222.23 N/A
PNC Bank, National Association PNC Bank, National Association $22,222,222.22 United States of America,
13/P/63904/DTTP
Regions Bank Regions Bank $11,111,111.12 United States of America,
13/R/330821/DTTP
Royal Bank of Canada Royal Bank of Canada, RBC Europe Limited $22,222,222.22 N/A
Scotiabank (Ireland) DAC Scotiabank (Ireland) DAC $22,222,222.22 N/A
Skandinaviska Enskilda Banken AB (publ) Skandinaviska Enskilda Banken AB (publ) $22,222,222.22 Sweden,
73/S/42621/DTTP
Sumitomo Mitsui Banking Corporation Sumitomo Mitsui Banking Corporation, Brussels Branch $22,222,222.22 Japan,
43/S/274647/DTTP
The Northern Trust Company The Northern Trust Company $11,111,111.12 United States of America,
13/N/60122/DTTP
The Toronto-Dominion Bank, London Branch The Toronto-Dominion Bank, London Branch $22,222,222.22 N/A
Wells Fargo Bank, National Association Wells Fargo Bank, National Association $22,222,222.23 United States of America,
13/W/61173/DTTP
TOTAL   $500,000,000  

 

169

 

 

Part 4

 

The Bookrunners and Mandated Lead Arrangers

 

1.Allied Irish Banks plc

 

2.Banco Santander S.A.

 

3.Barclays Bank PLC

 

4.BNP Paribas S.A., Dublin Branch

 

5.Citibank, N.A.

 

6.Commerzbank AG

 

7.Coöperatieve Rabobank U.A.

 

8.Crédit Agricole Corporate and Investment Bank

 

9.Credit Lyonnais

 

10.Danske Bank A/S, Irish Branch

 

11.Deutsche Bank Luxembourg SA

 

12.ING Bank N.V., Dublin Branch

 

13.J.P. Morgan Securities Plc

 

14.Lloyds Bank PLC

 

15.Mizuho Bank Europe N.V.

 

16.National Westminster Bank Plc

 

17.PNC Bank, National Association

 

18.RBC Capital Markets

 

19.Scotiabank (Ireland) DAC

 

20.Skandinaviska Enskilda Banken AB (publ)

 

21.Sumitomo Mitsui Banking Corporation, Brussels Branch

 

22.The Toronto-Dominion Bank, London Branch

 

23.Wells Fargo Bank, N.A.

 

170

 

 

Part 5

 

The Mandated Lead Arrangers

 

1.Bank of China (Europe) S.A., Dublin Branch

 

2.Crédit Industriel et Commercial, London Branch

 

3.The Governor and Company of the Bank of Ireland

 

4.The Northern Trust Company

 

5.Regions Bank

 

171

 

 

Schedule 2

 

Conditions Precedent

 

Part 1

 

Conditions Precedent to Initial Utilisation

 

1.Original Obligors

 

(a)A copy of the constitutional documents (or equivalent documents such as by-laws and certificate of incorporation) of each Original Obligor.

 

(b)A copy of a resolution of the board of directors (or any other competent corporate body) of each Original Obligor:

 

(i)approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;

 

(ii)if applicable, approving the terms of the power of attorney referred to in paragraph (d) below and resolving that it execute that power of attorney;

 

(iii)authorising a specified person or persons to execute on its behalf the Finance Documents to which it is a party;

 

(iv)authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request and Selection Notice) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party; and

 

(v)in the case of an Obligor other than the Obligors' Agent, authorising the Obligors' Agent to act as its agent in connection with the Finance Documents.

 

(c)A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.

 

(d)If applicable, a power of attorney of each Original Obligor authorising a specified person or persons to execute the Finance Documents to which that Original Obligor is a party on its behalf.

 

(e)If applicable, a copy of a resolution signed by all the holders of the issued shares in each Original Obligor (other than the Parent), approving the terms of, and the transactions contemplated by, the Finance Documents to which the Original Obligor is a party.

 

(f)If applicable, a copy of:

 

(i)a request for advice from the works council of each Original Obligor incorporated in The Netherlands in respect of the transactions contemplated by the Finance Documents to which it is a party; and

 

(ii)an unconditional positive works council advice of the works council of each Original Obligor incorporated in The Netherlands.

 

(g)A certificate of each Original Obligor signed by an authorised signatory or authorised signatories with authority to validly represent that Original Obligor certifying that:

 

172

 

 

(i)borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded;

 

(ii)each copy document relating to it specified in this Part 1 of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement;

 

(iii)in the case of the certificate delivered by each Irish Obligor only, it and each of the other Obligors are members of a group of companies within the meaning of section 8 of the Irish Companies Act and for the purposes of section 243 of the Irish Companies Act 2014; and

 

(iv)in the case of the certificate delivered by each Irish Obligor only, the entry into the Finance Documents by that Irish Obligor does not constitute unlawful financial assistance within the meaning of section 82 of the Companies Act 2014 of Ireland or breach section 239 of the Companies Act 2014 of Ireland.

 

2.Legal opinions

 

(a)A legal opinion of Allen Overy Shearman Sterling LLP, legal advisers to the Coordinators and the Agent in England.

 

(b)A legal opinion of McCann FitzGerald LLP, legal advisers to the Coordinators and the Agent in Ireland.

 

(c)A legal opinion of Stibbe London B.V., legal advisers to Smurfit International B.V. in the Netherlands.

 

3.Other documents and evidence

 

(a)Evidence that the fees, costs and expenses then due from Group pursuant to Clause 15 (Fees) and Clause 20 (Costs and Expenses) have been paid or will be paid by the first Utilisation Date.

 

(b)The Fee Letters executed by the Obligors' Agent.

 

4.Closing Date and closing process

 

(a)A certificate of the Obligors' Agent confirming that the Combination has occurred or will occur on or prior to the date of the first Utilisation.

 

(b)Evidence that the following facilities will be cancelled and (if drawn) prepaid in full on or before the first Utilisation Date or otherwise from the proceeds of the Facilities or from other arrangements agreed with the Agent acting reasonably prior to the Closing Date:

 

(i)the Smurfit Kappa 2019 RCF;

 

(ii)the WestRock Rabobank Credit Agreement;

 

(iii)the WestRock Wells Fargo Revolving Credit Agreement; and

 

(iv)(unless Facility A has been cancelled in full) the WestRock Farm Credit System Credit Agreement.

 

(c)Evidence that arrangements are in place for the Closing Date Guarantors to become Obligors, and Smurfit WestRock to become the Parent, on the Closing Date.

 

173

 

 

Part 2

 

Conditions Precedent Required to be Delivered by an Additional Obligor

 

1.An Accession Letter, duly executed by the Additional Obligor and the Obligors' Agent.

 

2.A copy of the constitutional documents (or equivalent documents such as by-laws and certificate of incorporation) of the Additional Obligor.

 

3.If applicable, a copy of a resolution of the board of directors (or other competent corporate body) of the Additional Obligor:

 

(a)approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter;

 

(b)authorising a specified person or persons to execute the Accession Letter on its behalf;

 

(c)authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including, in relation to an Additional Borrower, any Utilisation Request or Selection Notice) to be signed and/or despatched by it under or in connection with the Finance Documents; and

 

(d)authorising the Obligors' Agent to act as its agent in connection with the Finance Documents.

 

4.A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above.

 

5.If applicable, a copy of a resolution signed by all the holders of the issued shares of the Additional Obligor (other than in the case of Smurfit WestRock), approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional Obligor is a party.

 

6.If applicable, a copy of a resolution by the supervisory board of each Additional Obligor incorporated in The Netherlands, approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party.

 

7.If applicable, a copy of:

 

(a)a request for advice from the works council of each Additional Obligor incorporated in The Netherlands in respect of the transactions contemplated by the Finance Documents to which it is a party; and

 

(b)an unconditional positive works council advice of the works council of each Additional Obligor incorporated in The Netherlands.

 

8.A certificate of the Additional Obligor (signed by an authorised signatory or authorised signatories) with authority to validly represent that Additional Obligor certifying that:

 

(a)borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded;

 

(b)each copy document listed in this Part 2 of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter;

 

(c)in the case of the certificate delivered by an Additional Obligor that is an Irish Obligor only, it and each of the other Obligors are members of a group of companies within the meaning of section 8 of the Irish Companies Act and for the purposes of section 243 of the Irish Companies Act; and

 

174

 

 

(d)in the case of the certificate delivered by an Additional Obligor that is an Irish Obligor only, the entry into the Finance Documents by that Irish Obligor does not constitute unlawful financial assistance within the meaning of section 82 of the Companies Act 2014 of Ireland or breach section 239 of the Companies Act 2014 of Ireland.

 

9.A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of any Finance Document.

 

10.A legal opinion of Allen Overy Shearman Sterling LLP, legal advisers to the Coordinators and the Agent in England.

 

11.If the Additional Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of applicable legal advisers or internal counsel in the jurisdiction in which the Additional Obligor is incorporated or formed.

 

12.If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales, evidence that the process agent specified in Clause 44.2 (Service of process), if not an Obligor, has accepted its appointment in relation to the proposed Additional Obligor.

 

13.A good standing certificate of each Additional Obligor incorporated in the United States or Canada (or any subdivision of Canada) with respect to its jurisdiction of incorporation or organisation, dated not earlier than 5 Business Days prior to the date of the relevant Accession Letter.

 

175

 

 

Schedule 3

 

Requests

 

Part 1

 

Utilisation Request: Facility A Loans and Facility B Loans

 

From: [Borrower]/[Obligors' Agent]
   
To: [Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.

 

2.We wish to borrow a Loan on the following terms:

 

  Borrower: [·]
     
  Facility to be utilised: [Facility A]/[Facility B]
     
  Utilisation Date: [·] (or, if that is not a Business Day, the next Business Day)
  Currency of Loan: [·]
     
  Amount: [·] or, if less, the Available Facility
     
  Interest Period: [·]

 

3.We confirm that each condition specified in Clause 4.2 (Further conditions precedent) of the Agreement is satisfied on the date of this Utilisation Request or will be satisfied on the Utilisation Date.

 

4.[This Loan is to be made in [whole]/[part] for the purpose of refinancing [identify maturing Facility B Loan]/[The proceeds of this Loan should be credited to [account].]]

 

5.[This Utilisation Request is conditional upon the occurrence of the Closing Date.]

 

6.This Utilisation Request is irrevocable.

 

authorised signatory for

[name of relevant Borrower]/[Obligors' Agent]

 

176

 

 

Part 2

 

Utilisation Request: Swingline Loans

 

From: [Borrower]/[Obligors' Agent]
   
To: [Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.

 

2.We wish to borrow a Swingline Loan on the following terms:

 

  Borrower: [·]
     
  Facility to be utilised: Swingline Facility
     
  Utilisation Date: [·] (or, if that is not a Swingline Business Day, the next Swingline Business Day)
     
  Currency of Swingline Loan: US Dollars
     
  Amount: $[·] or, if less, the Available Swingline Facility
     
  Interest Period: [·]

 

3.We confirm that each condition specified in paragraph (b) of Clause 6.4 (Swingline Lenders' participation) of the Agreement is satisfied on the date of this Utilisation Request.

 

4.The proceeds of this Swingline Loan should be credited to [account].

 

5.This Utilisation Request is irrevocable.

 

authorised signatory for

[name of relevant Borrower]/[Obligors' Agent]

 

177

 

 

Part 3

 

Selection Notice

 

From: [Obligors' Agent]
   
To: [Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.

 

2.We refer to the following Facility A Loan[s] with an Interest Period ending on [·].

 

3.[We request that the next Interest Period for the above Facility A Loan[s] is [·]].

 

4.This Selection Notice is irrevocable.

 

authorised signatory for

[name of relevant Borrower]/[Obligors' Agent]

 

178

 

 

Part 4

 

Debt Pushdown Notice

 

From: [Obligors' Agent]
   
To: [Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is a Debt Pushdown Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Debt Pushdown Notice.

 

2.We request that Clause 5.6 (Debt pushdown – Facility A) takes effect on [       ] (the Debt Pushdown Date) and that the Facility A Loans are borrowed by [Borrower].

 

3.[This Debt Pushdown Notice is conditional upon the occurrence of the Closing Date.]

 

4.This Debt Pushdown Notice is irrevocable.

 

authorised signatory for

[Obligors' Agent]

 

179

 

 

Schedule 4

 

Form of Transfer Certificate

 

From:      [The Existing Lender] (the Existing Lender) and [The New Lender] (the New Lender)

 

To:      [Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.

 

2.We refer to Clause 27.5 (Procedure for transfer) of the Agreement:

 

(a)The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation, and in accordance with Clause 27.5 (Procedure for transfer) of the Agreement, all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment(s) and participations in Loans under the Agreement as specified in the Schedule.

 

(b)The proposed Transfer Date is [·].

 

(c)The Facility Office and address and attention details for notices of the New Lender for the purposes of Clause 34.2 (Addresses) of the Agreement are set out in the Schedule.

 

3.The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 27.4 (Limitation of responsibility of Existing Lenders) of the Agreement.

 

4.The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:1

 

(a)in respect of a Canadian Obligor:

 

(i)[not a Canadian Qualifying Lender;]

 

(ii)[a Canadian Qualifying Lender (other than a Canadian Treaty Lender); or]

 

(iii)[a Canadian Qualifying Lender solely on account of being a Treaty Lender;]

 

(b)in respect of a Dutch Obligor:

 

(i)[not a Dutch Qualifying Lender;]

 

(ii)[a Dutch Qualifying Lender other than a Dutch Treaty Lender; or]

 

(iii)[a Dutch Qualifying Lender solely on account of being a Dutch Treaty Lender.]

 

 

1 Delete as applicable – each New Lender is required to confirm which of the three categories it falls within in respect of a Canadian Obligor, Dutch Obligor, Irish Obligor, UK Obligor and US Obligor.

 

180

 

 

(c)in respect of an Irish Obligor:

 

(i)[not an Irish Qualifying Lender;]

 

(ii)[an Irish Qualifying Lender (other than an Irish Treaty Lender); or]

 

(iii)[an Irish Qualifying Lender on account of being a Treaty Lender;]

 

(d)in respect of a UK Obligor:

 

(i)[not a UK Qualifying Lender;]

 

(ii)[a UK Qualifying Lender (other than a UK Treaty Lender); or]

 

(iii)a UK Qualifying Lender solely on account of being a Treaty Lender;]

 

(e)in respect of a US Obligor:

 

(i)[not a US Qualifying Lender; or]

 

(ii)[a US Qualifying Lender.]

 

5.[The New Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [ ]) and is tax resident in [ ], so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and requests that the Obligors’ Agent notifies:

 

(a)each Borrower which is a Party as a Borrower as at the Transfer Date; and

 

(b)each Additional Borrower which becomes an Additional Borrower after the Transfer Date,

 

that it wishes that scheme to apply to the Agreement.]2

 

6.This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.

 

7.This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

8.This Transfer Certificate has been entered into as a deed on the date stated at the beginning of this Transfer Certificate.

 

9.This Transfer Certificate is intended to take effect as a deed notwithstanding a party may only execute this document under hand.

 

 

2 Include if New Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.

 

181

 

 

THE SCHEDULE

 

Commitment/rights and obligations to be transferred

 

[insert relevant details]

 

[Facility Office address and attention details for notices and account details for payments]

 

[Existing Lender]  
   
By:  

 

EXECUTED as a deed by [NEW LENDER] )  
acting by [·], )
in the presence of: )  
     
Witness's Signature      
     
Name:      
Address:      
       

 

This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [·].

 

[Agent]

 

By:

 

WARNING: Please seek Dutch legal advice (a) until competent authority publishes its interpretation of the term public (as referred to in Article 4.1(1) of the Capital Requirements Regulation (EU/575/2013)), if any amount lent to a Dutch borrower is to be transferred which is less than EUR 100,000 (or its equivalent in another currency) and (b) as soon as competent authority publishes its interpretation of the term public, if the New Lender is considered to be part of the public on the basis of that interpretation.

 

182

 

 

Schedule 5

 

Form of Assignment Agreement

 

From: [the Existing Lender] (the Existing Lender) and [the New Lender] (the New Lender)
   
To: [Agent] and [Obligors' Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.

 

2.We refer to Clause 27.6 (Procedure for assignment) of the Agreement:

 

(a)The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment(s) and participations in Loans under the Agreement as specified in the Schedule.

 

(b)The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitment(s) and participations in Loans under the Agreement specified in the Schedule.

 

(c)The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.

 

3.The proposed Transfer Date is [·].

 

4.On the Transfer Date the New Lender becomes party to the Finance Documents as a Lender.

 

5.The Facility Office and address and attention details for notices of the New Lender for the purposes of Clause 34.2 (Addresses) of the Agreement are set out in the Schedule.

 

6.The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 27.4 (Limitation of responsibility of Existing Lenders) of the Agreement.

 

7.The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that3:

 

(a)in respect of a Canadian Obligor:

 

(i)[not a Canadian Qualifying Lender;]

 

(ii)[a Canadian Qualifying Lender (other than a Canadian Treaty Lender); or]

 

(iii)[a Canadian Qualifying Lender solely on account of being a Treaty Lender;]

 

 

3 Delete as applicable – each New Lender is required to confirm which of the three categories it falls within in respect of a Canadian Obligor, Dutch Obligor, Irish Obligor, UK Obligor and US Obligor.

 

183

 

 

(b)in respect of a Dutch Obligor:

 

(i)[not a Dutch Qualifying Lender;]

 

(ii)[a Dutch Qualifying Lender other than a Dutch Treaty Lender; or]

 

(iii)[a Dutch Qualifying Lender solely on account of being a Dutch Treaty Lender.]

 

(c)in respect of an Irish Obligor:

 

(i)[not an Irish Qualifying Lender;]

 

(ii)[an Irish Qualifying Lender (other than an Irish Treaty Lender); or]

 

(iii)[an Irish Qualifying Lender on account of being a Treaty Lender;]

 

(d)in respect of a UK Obligor:

 

(i)[not a UK Qualifying Lender;]

 

(ii)[a UK Qualifying Lender (other than a UK Treaty Lender); or]

 

(iii)a UK Qualifying Lender solely on account of being a Treaty Lender;]

 

(e)in respect of a US Obligor:

 

(i)[not a US Qualifying Lender; or]

 

(ii)[a US Qualifying Lender.]

 

8.[The New Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [ ]) and is tax resident in [ ], so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and requests that the Obligors’ Agent notifies:

 

(a)each Borrower which is a Party as a Borrower as at the Transfer Date; and

 

(b)each Additional Borrower which becomes an Additional Borrower after the Transfer Date,

 

that it wishes that scheme to apply to the Agreement.]4

 

9.This Assignment Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 27.7 (Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation) of the Agreement, to the Obligors' Agent (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement.

 

10.This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.

 

11.This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

12.This Assignment Agreement has been entered into as a deed on the date stated at the beginning of this Assignment Agreement.

 

13.This Assignment Agreement is intended to take effect as a deed notwithstanding that a party may only execute this document under hand.

 

 

4 Include if New Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.

 

184

 

 

THE SCHEDULE

 

Rights to be assigned and obligations to be released and undertaken

 

[insert relevant details]

 

[Facility Office address and attention details for notices and account details for payments]

 

[Existing Lender]  
   
By:  

 

EXECUTED as a deed by [NEW LENDER] )  
acting by [·], )
in the presence of: )  
     
Witness's Signature      
     
Name:      
Address:      
       

 

This Assignment Agreement is accepted by the Agent and the Transfer Date is confirmed as [·].

 

Signature of this Assignment Agreement by the Agent constitutes confirmation by the Agent of receipt of notice of the assignment referred to herein, which notice the Agent receives on behalf of each Finance Party.

 

[Agent]

 

By:

 

WARNING: Please seek Dutch legal advice (a) until competent authority publishes its interpretation of the term public (as referred to in Article 4.1(1) of the Capital Requirements Regulation (EU/575/2013)), if any amount lent to a Dutch borrower is to be assigned which is less than EUR 100,000 (or its equivalent in another currency) and (b) as soon as competent authority publishes its interpretation of the term public, if the New Lender is considered to be part of the public on the basis of that interpretation.

 

185

 

 

Schedule 6

 

Form of Accession Letter

 

From: [Subsidiary] and [Obligors' Agent]
   
To: [Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.

 

2.[Subsidiary]/[Smurfit WestRock plc] agrees to become [an Additional [Borrower]/[Guarantor]]/[the Parent] and to be bound by the terms of the Agreement as [an Additional [Borrower]/[Guarantor]]/[the Parent] pursuant to [Clause 28.2 (Additional Borrowers)/28.4 (Additional Guarantors)/28.5 (Accession of Parent)] of the Agreement.

 

3.[Subsidiary] is to be a Borrower in relation to [Facility A/Facility B].*

 

4.[Subsidiary]/[Smurfit WestRock plc] is a company duly incorporated under the laws of [name of relevant jurisdiction].

 

5.[The Obligors' Agent confirms that no Default is continuing or would occur as a result of [Subsidiary] becoming an Additional Borrower.]**

 

6.[Subsidiary]/[Smurfit WestRock plc]'s administrative details are as follows:

 

Address:

 

Attention:

 

7.This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

[This Accession Letter is entered into as a deed.]

 

[Obligors' Agent] [Subsidiary]/[Smurfit WestRock plc]

 

*include only in the case of an Additional Borrower; more than one Facility may be specified if required.

 

**include only in the case of an Additional Borrower.

 

186

 

 

Schedule 7

 

Form of Resignation Letter

 

From: [resigning Obligor] and [Obligors' Agent]
   
To: [Agent]

 

Dated:

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter.

 

2.Pursuant to [Clause 28.3 (Resignation of a Borrower)]/[Clause 28.6 (Resignation of a Guarantor)] of the Agreement, we request that [resigning Obligor] be released from its obligations as a [Borrower]/[Guarantor] under the Agreement.

 

3.We confirm that no Default is continuing or would result from the acceptance of this request.

 

4.This Resignation Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

[Obligors' Agent]   [Subsidiary]
     
By:     By:  

 

187

 

 

Schedule 8

 

Form of Margin Certificate

 

From: [Obligors' Agent]
   
To: [Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is a Margin Certificate. Terms defined in the Agreement have the same meaning when used in this Margin Certificate unless given a different meaning in this Margin Certificate.

 

2.We confirm that, as of [insert date of the relevant change in Rating], the Rating is [·] as provided by [insert name of Rating Agency].

 

3.[The other Rating[s] [obtained/maintained] by the Parent are [·] with [insert name of Rating Agency] [and [·] with [insert name of Rating Agency]].

 

4.The applicable Margin pursuant to Clause 12.5 (Margin adjustments – rating) of the Agreement is therefore [·].

 

Signed:  
     
Authorised signatory    
[Obligors' Agent]    

 

188

 

 

Schedule 9

 

Extension Request

 

Part 1

 

Form of Extension Request

 

From: [Obligors' Agent]
   
To: [Agent]
   
Dated: [·]

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Extension Request. Terms defined in the Agreement have the same meaning in this Extension Request unless given a different meaning in this Extension Request.

 

2.Pursuant to Clause 9.4 (Extension of Termination Date) of the Agreement, we request that the Termination Date in respect of Facility B and the Swingline Facility be extended by [one/two] years commencing on the Initial Termination Date.

 

3.This is the [First/Second] Extension Request.

 

4.[Extension Request terms (if any) to be added].

 

5.[Deadline for response to Extension Request to be added].*

 

6.We confirm that no Event of Default is continuing.

 

7.This Extension Request and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

Yours faithfully

 

SIGNED by )  
[Obligors' Agent] )  
  ) Name:

 

* The deadline for response to the Extension Request must not be less than 15 Business Days from the date of the Extension Request.

 

189

 

 

Part 2

 

Form of Extension Request Acknowledgement

 

From: [Lender]
   
To: [Agent]
   
Dated: [·]

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Extension Request dated [·]. Terms defined in the Agreement have the same meaning in this Extension Request acknowledgment unless given a different meaning in this Extension Request acknowledgment.

 

2.Pursuant to Clause 9.4 (Extension of Termination Date) of the Agreement, we [agree/do not agree] that the Initial Termination Date in respect of [·]% of our Commitments under the Facility be extended by [one/two] years commencing on the Initial Termination Date in accordance with the terms of the Extension Request.

 

3.This Extension Request acknowledgment and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

Yours faithfully

 

SIGNED by )  
[Lender] )  
  ) Name:

 

190

 

 

Schedule 10

 

Timetables

 

All times are New York time unless otherwise specified.

 

  Loans in US
Dollars		 Loans in euros
or Sterling		 Loans in other
currencies
       
Agent notifies the Obligors' Agent if a currency is approved as an Optional Currency in accordance with Clause 4.3 (Conditions relating to Optional Currencies) - - U-5
Delivery of a duly completed Utilisation Request (Clause 5.2 (Delivery of a Utilisation Request)) or a Selection Notice (Clause 13.1 (Selection of Interest Periods))

U-3

11:00 am

U-4

11:00 am

U-4

11:00 am

Agent determines the Base Currency Amount of a Loan, if required under Clause 5.5 (Lenders' participation), and notifies the Lenders of the Loan in accordance with Clause 5.5 (Lenders' participation) -

U-3

2:00 pm

U-3

2:00 pm

Agent receives a notification from a Lender under Clause 7.2 (Unavailability of a currency) - - 8:00 am two Business Days before the first day of the Interest Period for the relevant Loan
Agent gives notice in accordance with Clause 7.2 (Unavailability of a currency) - - 12:00 noon on the day which is two Business Days before the first day of the Interest Period for the relevant Loan

 

U = date of utilisation or, if applicable, in the case of a Facility A Loan that has already been borrowed, the first day of the relevant Interest Period for that Loan.
     
U-X = Business Days prior to date of utilisation.

 

 

191

 

 

Schedule 11

 

Guarantee Principles

 

1.In this Schedule:

 

CFC means a "controlled foreign corporation" within the meaning of Section 957(a) of the Internal Revenue Code that is owned (within the meaning of Section 958(a) or 958(b) of the Internal Revenue Code) by a member of the Group that is a "United States Shareholder" (as defined in Section 951(b) of the Internal Revenue Code).

 

FSHCO means an entity substantially all the assets of which consist of equity interests (or equity interests and indebtedness) of one or more CFCs.

 

2.The guarantees to be provided under the Finance Documents will be given in accordance with certain guarantee principles and it is agreed and acknowledged that the Finance Parties shall receive the benefit of upstream, cross-stream and downstream guarantees in accordance with, and subject to, such guarantee principles, as set out below.

 

3.The Obligors and the Lenders have agreed and acknowledged that their rights and obligations under the Finance Documents in respect of the giving or taking of guarantees and all the rights and obligations associated with such giving or taking of guarantees, shall be subject to and limited by these Guarantee Principles. The Guarantee Principles embody the recognition by all Parties that there may be certain legal and practical difficulties in obtaining effective guarantees from all members of the Group in every jurisdiction in which members of the Group are located. In particular:

 

(a)general statutory limitations, financial assistance, capital maintenance, corporate benefit, fraudulent preference, thin capitalisation rules, retention of title claims and similar principles may limit the ability of a member of the Group to provide a guarantee or may require that the guarantee be limited by an amount or otherwise. If any such limit applies, the guarantees provided will be limited to the maximum amount which the relevant member of the Group may provide having regard to applicable law (including any jurisprudence) and subject to fiduciary duties of management;

 

(b)the giving of a guarantee will not be required to the extent that it would incur any legal fees, registration fees, stamp duty, taxes and any other fees or costs directly associated with such guarantee which are disproportionate to the benefit obtained by the Finance Parties;

 

(c)it is expressly acknowledged that in certain jurisdictions it may be either impossible or impractical to grant guarantees in which event such guarantees will not be granted;

 

(d)any entity subject to third party arrangements which were not entered into in contemplation of any Finance Document which may prevent that entity from granting a guarantee will be excluded from the obligations to grant a guarantee under the Finance Documents; and

 

(e)members of the Group will not be required to give guarantees if it is unlawful for it to give a guarantee or it is not within the legal capacity of the relevant members of the Group or if, in the reasonable opinion of the directors of the relevant members of the Group, the same would conflict with the fiduciary duties of those directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer or result in any significant risk of legal liability for the directors of any Group company.

 

192

 

 

4.The Finance Parties will work with the Parent or the Obligors' Agent to agree any limitation on any guarantee to the extent requested by the Parent or the Obligors' Agent and to the extent that such limitation is contemplated by these Guarantee Principles. Each Finance Party authorises the Agent (without any further consent or approval) to agree such limitations and any consequential amendments to this Agreement. For the avoidance of doubt, such amendments can be made to a guarantee after the date of this Agreement or after any accession of any Guarantor in order to ensure continuing compliance with these Guarantee Principles (including, but not limited to, as a result of an accession of a member of the Group as an Additional Borrower). For the avoidance of doubt, this paragraph 4 shall not entitle the Agent to change the nature or scope of guarantees and indemnities other than in accordance with the Clause 38 (Amendments and Waivers) of this Agreement.

 

5.The Finance Parties will work with the Parent or the Obligors' Agent to minimise the cost to the Group of granting any guarantees and shall ensure that in all events the costs are not disproportionate to the benefit to be obtained by the Finance Parties.

 

6.Certain US Limitations:

 

(a)None of the following entities shall be required to guarantee the obligations of any US Obligor under any Finance Document: (A) any CFC, (B) any FSHCO, (C) any Subsidiary of a CFC or a FSHCO, and (D) any other member of the Group if its guarantee could, as determined by the Obligors' Agent (acting reasonably and in good faith), result in material adverse US tax consequences for any member of the Group or any of its direct or indirect owners.

 

(b)Notwithstanding anything contained in this Agreement or any other Finance Document, the obligations of each Obligor under this Agreement or any other Finance Document shall be limited to an aggregate amount equal to the largest amount that would not render its obligations under this Agreement or any other Finance Document subject to avoidance as a fraudulent transfer or conveyance under section 548 of the Bankruptcy Code or any comparable provisions of any similar federal or state law.

 

(c)Subject to Clause 21.7 (Deferral of Guarantors' rights) and to paragraphs (a) and (b) above, but otherwise without prejudice to any of the other provisions of any Finance Document, if any payment or distribution is made on any date by an Obligor under this paragraph 6, each such Obligor shall be entitled to be indemnified by each other Guarantor in an amount equal to such payment, in each case multiplied by a fraction of which the numerator shall be the net worth of the contributing Obligor and the denominator shall be the aggregate net worth of all Obligors provided, that all rights of indemnity, contribution or subrogation of the Guarantors under applicable law or otherwise shall be fully subordinated to the payment in full of all amounts outstanding under the Finance Documents.

 

193

 

 

Schedule 12

 

Form of Increase Confirmation

 

From: [the Increase Lender] (the Increase Lender)
   
To: [Agent]  and [Obligors' Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation.

 

2.We refer to Clause 2.2 (Increase after cancellation) of the Agreement.

 

3.The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment(s) specified in the Schedule (the Relevant Commitment(s)) as if it had been an Original Lender under the Agreement in respect of the Relevant Commitment(s).

 

4.The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment(s) is to take effect (the Increase Date) is [·].

 

5.On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender.

 

6.The Facility Office and address and attention details for notices to the Increase Lender for the purposes of Clause 34.2 (Addresses) of the Agreement are set out in the Schedule.

 

7.The Increase Lender expressly acknowledges the limitations on the Lenders' obligations referred to in paragraph (i) of Clause 2.2 (Increase after cancellation) of the Agreement.

 

8.The Increase Lender confirms, for the benefit of the Agent and without liability to any Obligor, that5:

 

(a)in respect of a Canadian Obligor:

 

(i)[not a Canadian Qualifying Lender;]

 

(ii)[a Canadian Qualifying Lender (other than a Canadian Treaty Lender); or]

 

(iii)[a Canadian Qualifying Lender solely on account of being a Treaty Lender;]

 

(b)in respect of a Dutch Obligor:

 

(i)[not a Dutch Qualifying Lender;]

 

(ii)[a Dutch Qualifying Lender other than a Dutch Treaty Lender; or]

 

 

5 Delete as applicable – each Increase Lender is required to confirm which of the three categories it falls within in respect of a Canadian Obligor, Dutch Obligor, Irish Obligor, UK Obligor and US Obligor.

 

194

 

 

(iii)[a Dutch Qualifying Lender solely on account of being a Dutch Treaty Lender.]

 

(c)in respect of an Irish Obligor:

 

(i)[not an Irish Qualifying Lender;]

 

(ii)[an Irish Qualifying Lender (other than an Irish Treaty Lender); or]

 

(iii)[an Irish Qualifying Lender on account of being a Treaty Lender;]

 

(d)in respect of a UK Obligor:

 

(i)[not a UK Qualifying Lender;]

 

(ii)[a UK Qualifying Lender (other than a UK Treaty Lender); or]

 

(iii)a UK Qualifying Lender solely on account of being a Treaty Lender;]

 

(e)in respect of a US Obligor:

 

(i)[not a US Qualifying Lender; or]

 

(ii)[a US Qualifying Lender.]

 

9.[The Increase Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [ ]) and is tax resident in [ ], so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and requests that the Obligors’ Agent notifies:

 

(a)each Borrower which is a Party as a Borrower as at the Increase Date; and

 

(b)each Additional Borrower which becomes an Additional Borrower after the Increase Date,

 

that it wishes that scheme to apply to the Agreement.]6

 

10.This Increase Confirmation may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Increase Confirmation.

 

11.This Increase Confirmation and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

12.This Increase Confirmation has been entered into on the date stated at its beginning.

 

 

6 Include if New Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.

 

195

 

 

THE SCHEDULE

 

Relevant Commitment(s)/rights and obligations to be assumed by the Increase Lender

 

[insert relevant details]

 

[Facility Office address and attention details for notices and account details for payments]

 

[Increase Lender]

 

By:

 

This Increase Confirmation is accepted by the Agent and the Increase Date is confirmed as [      ].

 

Agent

 

By:

 

196

 

 

 

Schedule 13

 

Form of Ancillary Lender Accession Letter

 

From: [Ancillary Lender] and [Obligors' Agent]

 

To: [Agent]

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Ancillary Lender Accession Letter. Terms defined in the Agreement have the same meaning in this Ancillary Lender Accession Letter unless given a different meaning in this Ancillary Lender Accession Letter.

 

2.This Ancillary Lender Accession Letter is made on [date] by [insert full name of new Ancillary Lender] (the Acceding Ancillary Lender) in relation to the Agreement.

 

3.[The Acceding Ancillary Lender has become a provider of an Ancillary Facility to the [insert name of Obligor/Affiliate of Obligor]. In consideration of the Acceding Ancillary Lender being accepted as an Ancillary Lender for the purposes of the Agreement, the Acceding Ancillary Lender confirms, for the benefit of the parties to the Agreement, that, as from [date], it intends to be party to the Agreement as an Ancillary Lender, and undertakes to perform all the obligations expressed in the Agreement to be assumed by an Ancillary Lender and agrees that it shall be bound by all the provisions of the Agreement, as if it had been an original party to the Agreement as an Ancillary Lender.]

 

4.This Ancillary Lender Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

5.[This Ancillary Lender Accession Letter is entered into as a deed.]

 

[Obligors' Agent]      [Ancillary Lender]

 

[Accepted by the Agent]

 

for and on behalf of

 

[Insert full name of Agent]

 

[Date:]

 

198 

 

 

Schedule 14

 

Reference Rate Terms

 

Part 1

 

US Dollars – Term Rate Loans

 

Currency:   US Dollars.
     
Category of Loans:   Term Rate Loans.
     
Rate Switch Currency:   US Dollars is not a Rate Switch Currency.
     
Term Fallback Option:   Compounded Reference Rate will apply as a fallback.
     
Cost of funds as a fallback:   Cost of funds will not apply as a fallback.
 
Definitions
 
Additional Business Days:  

Any day other than:

     
    (a) a Saturday or a Sunday; and
       
    (b) a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities.
     
Alternative Term Rate:   The Term SOFR reference rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by ICE Benchmark Administration Limited (or any other person which takes over the publication of that rate).
     
Alternative Term Rate CAS:   The Term Reference Rate CAS
     
Break Costs:  

The amount (if any) by which:

     
    (a) the interest (excluding the part attributable to the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in the relevant Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
       
    exceeds:
       
    (b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

 

199 

 

 

Business Day Conventions (definition of "Month" and Clause 13.4 (Non-Business Days)):   (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
     
    (i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
     
    (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
     
    (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
     
    (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
     
Fallback Interest Period:   One Month.
     
Market Disruption Rate:  

The percentage rate per annum which is the aggregate of:

     
    (a) the Term Reference Rate; and
     
    (b)  the applicable Term Reference Rate CAS (if any).
     
Overnight Rate:   The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published (before any correction, recalculation or republication by the administrator) by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate).
     
Overnight Reference Day:   The day which is two Additional Business Days before the Quotation Day.

 

200 

 

 

Primary Term Rate:   The aggregate of:
     
    (a) the Term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by CME Group Benchmark Administration Limited (or any other person which takes over the publication of that rate); and
     
    (b) the Term Reference Rate CAS.
     
Quotation Day:   Two Additional Business Days before the first day of the relevant Interest Period (unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Market, and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days).
     
Quotation Time:   The Quotation Day.
     
Relevant Market:   The market for overnight cash borrowing collateralised by US Government securities.
     
Reporting Day:   (a) Subject to paragraph (b) below, the Quotation Day.
     
    (b) If the Term Reference Rate is, or is based on the Alternative Term Rate, the date falling one Business Day after the Quotation Day.
     
Term Reference Rate CAS:   0.10% per annum.
     
Interest Periods    
     
Length of Interest Period in absence of selection (paragraph (c) of Clause 13.1 (Selection of Interest Periods)):   Three Months.
     
Periods capable of selection as Interest Periods (paragraph (d) of Clause 13.1 (Selection of Interest Periods)):   One, three or six Months.
     
Reporting Times    
     
Deadline for Lenders to report market disruption in accordance with Clause 14.3 (Market disruption):   Close of business in London on the Reporting Day for the relevant Loan.
     
Deadline for Lenders to report their cost of funds in accordance with Clause 14.4 (Cost of funds):   Close of business on the date falling three Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling three Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).

 

201 

 

 

Part 2

 

US Dollars – Compounded Rate Loans

 

Currency:   US Dollars.
     
Category of Loans:   Compounded Rate Loans.
     
Cost of funds as a fallback:   Cost of funds will not apply as a fallback.
       
Definitions      
     
Additional Business Days:   An RFR Banking Day.

 

Baseline CAS:   Interest Period Baseline CAS (% per annum)
    One Month or less 0.11448
    Three Months or less but greater than one Month 0.26161
    Greater than three Months 0.42826

 

Break Costs:   None specified.
     
Business Day Conventions (definition of "Month" and Clause 13.4 (Non-Business Days)):   (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
     
    (i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;  
         
    (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and  
         
    (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
     
    (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

202 

 

 

Central Bank Rate:   (a) The short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or
     
    (b) if that target is not a single figure, the arithmetic mean of:
     
    (i) the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and
     
    (ii) the lower bound of that target range.
     
Central Bank Rate Adjustment:   In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20% trimmed arithmetic mean (calculated by the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available.
     
Central Bank Rate Spread:   In relation to any RFR Banking Day, the difference (expressed as a percentage per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between:
     
    (a) the RFR for that RFR Banking Day; and
     
    (b) the Central Bank Rate prevailing at the close of business on that RFR Banking Day.
     
Daily Rate:   The "Daily Rate" for any RFR Banking Day is:
     
    (a) the RFR for that RFR Banking Day;
     
    (b) if the RFR for that RFR Banking Day is not available, the Historic RFR for that RFR Banking Day;
     
    (c) if paragraph (b) above applies but the Historic RFR for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:
       
    (i) the Central Bank Rate for that RFR Banking Day; and  
         
    (ii) the applicable Central Bank Rate Adjustment; or  

 

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    (d) if paragraph (c) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:  
       
    (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and  
         
    (ii) the applicable Central Bank Rate Adjustment,
         
    rounded, in either case, to five decimal places and if, in either case, the aggregate of that rate and the applicable Baseline CAS is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable Baseline CAS is zero.
     
Fallback CAS:   None specified.
     
Lookback Period:   Five RFR Banking Days.
     
Market Disruption Rate:   The percentage rate per annum which is the aggregate of:
     
    (a) the Cumulative Compounded RFR Rate for the Interest Period of the relevant Loan; and
       
    (b) the applicable Baseline CAS.
     
Relevant Market:   The market for overnight cash borrowing collateralised by US Government securities.
     
Reporting Day:   The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period.
     
RFR:   The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate).
     
RFR Banking Day:   Any day other than:
     
    (a) a Saturday or Sunday; and
     
    (b) a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities.
Interest Periods    
     
Length of Interest Period in absence of selection (paragraph (c) of Clause 13.1 (Selection of Interest Periods)):   Three Months.
     
Periods capable of selection as Interest Periods (paragraph (d) of Clause 13.1 (Selection of Interest Periods)):   One, two, three or six Months.

 

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Reporting Times    
     
Deadline for Lenders to report market disruption in accordance with Clause 14.3 (Market disruption):   Close of business in London on the Reporting Day for the relevant Loan.
     
Deadline for Lenders to report their cost of funds in accordance with Clause 14.4 (Cost of funds):   Close of business on the date falling three Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling three Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).

 

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Part 3

 

Euro

 

Currency:   Euro.
     
Rate Switch Currency:   Euro is not a Rate Switch Currency.
     
Term Fallback Option:   None specified.
     
Cost of funds as a fallback:   Cost of funds will apply as a fallback.
     
Definitions
 
Additional Business Days:   A TARGET Day.
     
Alternative Term Rate:   None specified.
     
Break Costs:   The amount (if any) by which:
     
    (a) the interest (other than the part attributable to the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in the relevant Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
     
    exceeds:
     
    (b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
     
Business Day Conventions (definition of "Month" and Clause 13.4 (Non-Business Days)):   (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
     
      (i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
     
      (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

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      (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
     
    (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
       
Fallback Interest Period:   One Month.
     
Market Disruption Rate:   The Term Reference Rate.
     
Overnight Rate:   None specified.
     
Overnight Reference Day:   None specified.
     
Primary Term Rate:   The euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by the European Money Markets Institute (or any other person which takes over the publication of that rate).
     
Quotation Day:   Two TARGET Days before the first day of the relevant Interest Period (unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Market, and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days).
     
Quotation Time:   Quotation Day 11.00am (Brussels time).
     
Relevant Market:   The European interbank market.
     
Reporting Day:   The Quotation Day.
     
Interest Periods    
     
Length of Interest Period in absence of selection (paragraph (c) of Clause 13.1 (Selection of Interest Periods)):   Three Months.
     
Periods capable of selection as Interest Periods (paragraph (d) of Clause 13.1 (Selection of Interest Periods)):   One, three or six Months.

 

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Reporting Times    
     
Deadline for Lenders to report market disruption in accordance with Clause 14.3 (Market disruption):   Close of business in London on the Reporting Day for the relevant Loan.
     
Deadline for Lenders to report their cost of funds in accordance with Clause 14.4 (Cost of funds):   Close of business on the date falling three Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling three Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).

 

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Part 4

 

Sterling

 

Currency:   Sterling.
     
Category of Loans:   Compounded Rate Loans.
     
Cost of funds as a fallback:   Cost of funds will not apply as a fallback.
     
Definitions    
     
Additional Business Days:   An RFR Banking Day.

 

Baseline CAS:   Interest Period Baseline CAS (% per annum)
    One Month or less 0.0326
    Two Months or less but greater than one Month 0.0633
    Three Months or less but greater than two Months 0.1193
    Greater than three Months 0.2766

 

Break Costs:   None specified.
     
Business Day Conventions (definition of "Month" and Clause 13.4 (Non-Business Days)):   (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:  
     
      (i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
     
      (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
     
      (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

 

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    (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
       
Central Bank Rate:   The Bank of England's Bank Rate as published by the Bank of England from time to time.
     
Central Bank Rate Adjustment:   In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20% trimmed arithmetic mean (calculated by the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available.  
     
Central Bank Rate Spread:   In relation to any RFR Banking Day, the difference (expressed as a percentage per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between:
     
    (a) the RFR for that RFR Banking Day; and  
     
    (b) the Central Bank Rate prevailing at the close of business on that RFR Banking Day.
     
Daily Rate:   The "Daily Rate" for any RFR Banking Day is:
     
    (a) the RFR for that RFR Banking Day; or
     
    (b) if the RFR for that RFR Banking Day is not available, the Historic RFR for that RFR Banking Day;
     
    (c) if paragraph (b) above applies but the Historic RFR for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:
     
      (i) the Central Bank Rate for that RFR Banking Day; and  
     
      (ii) the applicable Central Bank Rate Adjustment; or  
     
    (d) if paragraph (c) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:  
     
      (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and  
     
      (ii) the applicable Central Bank Rate Adjustment,  
     
    rounded, in either case, to four decimal places and if, in either case, the aggregate of that rate and the applicable Baseline CAS is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable Baseline CAS is zero.

 

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Lookback Period:   Five RFR Banking Days.
     
Market Disruption Rate:   The percentage rate per annum which is the aggregate of:
     
    (a) the Cumulative Compounded RFR Rate for the Interest Period of the relevant Loan; and  
     
    (b) the applicable Baseline CAS.
     
Relevant Market:   The Sterling wholesale market.
     
Reporting Day:   The day which is the Lookback Period before the last day of the Interest Period or, if that day is not a Business Day, the immediately following Business Day.
     
RFR:   The SONIA (Sterling overnight index average) reference rate displayed on the relevant screen of any authorised distributor of that reference rate.
     
RFR Banking Day:   A day (other than a Saturday or Sunday) on which banks are open for general business in London.
     
Interest Periods    
     
Length of Interest Period in absence of selection (paragraph (c) of Clause 13.1 (Selection of Interest Periods)):   Three Months.  
     
Periods capable of selection as Interest Periods (paragraph (d) of Clause 13.1 (Selection of Interest Periods)):   One, two, three or six Months.
     
Reporting Times    
     
Deadline for Lenders to report market disruption in accordance with Clause 14.3 (Market disruption):   Close of business in London on the Reporting Day for the relevant Loan.
     
Deadline for Lenders to report their cost of funds in accordance with Clause 14.4 (Cost of funds):   Close of business on the date falling three Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling three Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).

 

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Part 5

 

Swiss Francs

 

Currency:   Swiss francs.
     
Category of Loans:   Compounded Rate Loans.
     
Cost of funds as a fallback:   Cost of funds will not apply as a fallback.
     
Definitions    
     
Additional Business Days:   An RFR Banking Day.

 

Baseline CAS:   Interest Period Baseline CAS (% per annum)
    One Month or less -0.0571
    Two Months or less but greater than one Month -0.0231
    Three Months or less but greater than two Months 0.0031
    Greater than three Months 0.0741

 

Break Costs:   None specified.
     
Business Day Conventions (definition of "Month" and Clause 13.4 (Non-Business Days)):   (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
       
      (i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
         
      (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
         
      (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

 

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    (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
     
Central Bank Rate:   The policy rate of the Swiss National Bank as published by the Swiss National Bank from time to time.
     
Central Bank Rate Adjustment:   In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20% trimmed arithmetic mean (calculated by the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available.  
     
Central Bank Rate Spread:   In relation to any RFR Banking Day, the difference (expressed as a percentage per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between:
     
    (a) the RFR for that RFR Banking Day; and  
     
    (b) the Central Bank Rate prevailing at the close of business on that RFR Banking Day.
     
Daily Rate:   The "Daily Rate" for any RFR Banking Day is:
     
    (a) the RFR for that RFR Banking Day; or
     
    (b) if the RFR for that RFR Banking Day is not available, the Historic RFR for that RFR Banking Day;
     
    (c) if paragraph (b) above applies but the Historic RFR for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:  
     
      (i) the Central Bank Rate for that RFR Banking Day; and  
     
      (ii) the applicable Central Bank Rate Adjustment; or
     
    (d) if paragraph (c) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:
     
      (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and  
     
      (ii) the applicable Central Bank Rate Adjustment,  
     
    rounded, in either case, to six decimal places and if, in either case, the aggregate of that rate and the applicable Baseline CAS is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable Baseline CAS is zero.

 

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Lookback Period:   Five RFR Banking Days.
     
Market Disruption Rate:   The percentage rate per annum which is the aggregate of:
     
    (a) The Cumulative Compounded RFR Rate for the Interest Period of the relevant Loan; and  
     
    (b) the applicable Baseline CAS.
     
Relevant Market:   The Swiss francs overnight repo market.
     
Reporting Day:   The day which is the Lookback Period prior to the last day of the Interest Period or, if that day is not a Business Day, the immediately following Business Day.
     
RFR:   The SARON (Swiss Average Rate Overnight) reference rate administered by SIX (or any other person which takes over the administration of that rate) as at the close of trading on the SIX Swiss Exchange on the relevant day published by SIX (or any other person which takes over the publication of that rate).
     
RFR Banking Day:   A day (other than a Saturday or Sunday) on which banks are open for the settlement of payments and foreign exchange transactions in Zurich.
     
Interest Periods    
     
Length of Interest Period in absence of selection (paragraph (c) of Clause 13.1 (Selection of Interest Periods)):   Three Months.
     
Periods capable of selection as Interest Periods (paragraph (d) of Clause 13.1 (Selection of Interest Periods)):   One, two, three or six Months.
     
Reporting Times    
     
Deadline for Lenders to report market disruption in accordance with Clause 14.3 (Market disruption):   Close of business in London on the Reporting Day for the relevant Loan.
     
Deadline for Lenders to report their cost of funds in accordance with Clause 14.4 (Cost of funds):   Close of business on the date falling three Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling three Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).

 

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Part 6

 

Japanese Yen

 

Currency:   Japanese Yen.
     
Category of Loans:   Compounded Rate Loans.
     
Cost of funds as a fallback:   Cost of funds will not apply as a fallback.
     
Definitions    
     
Additional Business Days:   An RFR Banking Day.

 

Baseline CAS:   Interest Period Baseline CAS (% per annum)
    One Month or less -0.02923
    Two Months or less but greater than one Month -0.00449
    Three Months or less but greater than two Months 0.00835
    Greater than three Months 0.05809

 

Break Costs:   None specified.
     
Business Day Conventions (definition of "Month" and Clause 13.4 (Non-Business Days)):   (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
       
      (i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
         
      (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
         
      (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
         
    (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

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Central Bank Rate:   The uncollateralised overnight call rate of the Bank of Japan.
     
Central Bank Rate Adjustment:   In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20% trimmed arithmetic mean (calculated by the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available.  
     
Central Bank Rate Spread:   In relation to any RFR Banking Day, the difference (expressed as a percentage per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between:
     
    (a) the RFR for that RFR Banking Day; and
       
    (b) the Central Bank Rate prevailing at the close of business on that RFR Banking Day.
       
Daily Rate:   The "Daily Rate" for any RFR Banking Day is:
     
    (a) the RFR for that RFR Banking Day; or
     
    (b) if the RFR for that RFR Banking Day is not available, the Historic RFR for that RFR Banking Day; or
     
    (c) if paragraph (b) above applies but the Historic RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of:  
     
      (i) the Central Bank Rate for that RFR Banking Day; and  
     
      (ii) the applicable Central Bank Rate Adjustment; or
     
    (d) if paragraph (c) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:
     
      (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and  
     
      (ii) the applicable Central Bank Rate Adjustment,  
     
    rounded, in either case, to five decimal places and if, in either case, the aggregate of that rate and the applicable Baseline CAS is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable Baseline CAS is zero.
     
Lookback Period:   Five RFR Banking Days.

 

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Market Disruption Rate:   The percentage rate per annum which is the aggregate of:
     
    (a) the Cumulative Compounded RFR Rate for the Interest Period of the relevant Loan; and
     
    (b) the applicable Credit Adjustment Spread.
     
Relevant Market:   The Japanese Yen wholesale market.
     
Reporting Day:   The day which is the Lookback Period prior to the last day of the Interest Period or, if that day is not a Business Day, the immediately following Business Day.
     
RFR:   The trade weighted average of the overnight unsecured call loan rate (rounded upward, if necessary, to the nearest 1/100th of 1%) which appears on the Reuters Screen TONAR page under the heading 'Tokyo Overnight Average Rates' on such day.
     
RFR Banking Day:   A day (other than a Saturday or Sunday) on which banks are open for general business in Tokyo.
     
Interest Periods    
     
Length of Interest Period in absence of selection (paragraph (c) of Clause 13.1 (Selection of Interest Periods)):   Three Months.
     
Periods capable of selection as Interest Periods (paragraph (d) of Clause 13.1 (Selection of Interest Periods)):   One, two, three or six Months.
     
Reporting Times    
     
Deadline for Lenders to report market disruption in accordance with Clause 14.3 (Market disruption):   Close of business in London on the Reporting Day for the relevant Loan.
     
Deadline for Lenders to report their cost of funds in accordance with Clause 14.4 (Cost of funds):   Close of business on the date falling three Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling three Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).

 

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Part 7

 

Swedish Kronor

 

Currency:   Swedish Kronor.
     
Category of Loans:   Term Rate Loans.
     
Rate Switch Currency:   Swedish Kronor is not a Rate Switch Currency.
     
Term Fallback Option:   None.
     
Cost of funds as a fallback:   Cost of funds will not apply as a fallback.
     
Definitions    
     
Additional Business Days:   Any day other than a Saturday or a Sunday on which banks are open for general business in Stockholm.
     
Alternative Term Rate:   None specified.
     
Break Costs:   The amount (if any) by which:
     
    (a) the interest (excluding the part attributable to the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in the relevant Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
     
    exceeds:
     
    (b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
     
Business Day Conventions (definition of "Month" and Clause 13.4 (Non-Business Days)):   (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
     
      (i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
     
      (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

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      (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
     
    (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
     
Fallback Interest Period:   One Month.
     
Market Disruption Rate:   The Term Reference Rate.
     
Overnight Rate:   None specified.
     
Overnight Reference Day:   None specified.
     
Primary Term Rate:   The Stockholm interbank offered rate administered by the Swedish Bankers' Association (or any other person which takes over the administration of that rate) for the relevant period displayed on page STIBOR= of the Thomson Reuters screen.
     
Quotation Day:   Two Additional Business Days before the first day of the relevant Interest Period (unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Market, and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days).
     
Quotation Time:   11:00 am (Stockholm time) on the Quotation Day.
     
Relevant Market:   The Swedish interbank market.
     
Reporting Day:   The Quotation Day.
     
Interest Periods    
     
Length of Interest Period in absence of selection (paragraph (c) of Clause 13.1 (Selection of Interest Periods)):   Three Months.
     
Periods capable of selection as Interest Periods (paragraph (d) of Clause 13.1 (Selection of Interest Periods)):   One, three or six Months.
     
Reporting Times    
     
Deadline for Lenders to report market disruption in accordance with Clause 14.3 (Market disruption):   Close of business in London on the Reporting Day for the relevant Loan.
     
Deadline for Lenders to report their cost of funds in accordance with Clause 14.4 (Cost of funds):   Close of business on the date falling three Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling three Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).

 

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Part 8

 

Canadian Dollars

 

Currency:   Canadian Dollars.
     
Category of Loans:   Compounded Rate Loans.
     
Cost of funds as a fallback:   Cost of funds will not apply as a fallback.
     
Definitions    
     
Additional Business Days:   An RFR Banking Day.

 

Baseline CAS:   Interest Period Baseline CAS (% per annum)
    One Month or less 0.29547
    Two Months or less but greater than one Month 0.30190
    Greater than two Months 0.32138

 

Break Costs:   None specified.
     
Business Day Conventions (definition of "Month" and Clause 13.4 (Non-Business Days)):   (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
       
      (i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
     
      (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and  
     
      (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

 

220 

 

 

    (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
       
Central Bank Rate:   The Bank of Canada's target for the overnight rate (also known as the Bank of Canada's policy interest rate) as published by the Bank of Canada from time to time.
     
Central Bank Rate Adjustment:   In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20% trimmed arithmetic mean (calculated by the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available.
     
Central Bank Rate Spread:   In relation to any RFR Banking Day, the difference (expressed as a percentage per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between:
     
    (a) the RFR for that RFR Banking Day; and
     
    (b) the Central Bank Rate prevailing at the close of business on that RFR Banking Day.
     
Daily Rate:   The "Daily Rate" for any RFR Banking Day is:
     
    (a) the RFR for that RFR Banking Day; or
     
    (b) if the RFR for that RFR Banking Day is not available, the Historic RFR for that RFR Banking Day; or  
       
    (c) if paragraph (b) above applies but the Historic RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of:  
       
      (i) the Central Bank Rate for that RFR Banking Day; and  
         
      (ii) the applicable Central Bank Rate Adjustment; or
         
    (d) if paragraph (c) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:
       
      (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and  
     
      (ii) the applicable Central Bank Rate Adjustment,  

 

221 

 

 

    rounded, in either case, to four decimal places and if, in either case, the aggregate of that rate and the applicable Baseline CAS is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable Baseline CAS is zero.
     
Lookback Period:   Five RFR Banking Days
     
Market Disruption Rate:   The percentage rate per annum which is the aggregate of:
     
    (a) the Cumulative Compounded RFR Rate for the Interest Period of the relevant Loan; and  
       
    (b) the applicable Credit Adjustment Spread.
     
Relevant Market:   The market for overnight general collateral funding in Canadian Dollars using Government of Canada treasury bills and bonds as collateral for repurchase transactions.
     
Reporting Day:   The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period.
     
RFR:   The Canadian Overnight Repo Rate Average ("CORRA") administered by the Bank of Canada (or any other person which takes over the administration of that rate) published by the Bank of Canada (or any other person which takes over the publication of that rate).
     
RFR Banking Day:   A day (other than a Saturday or Sunday) on which banks are open for general business in Toronto.
     
Interest Periods    
     
Length of Interest Period in absence of selection (paragraph (c) of Clause 13.1 (Selection of Interest Periods)):   Three Months.
     
Periods capable of selection as Interest Periods (paragraph (d) of Clause 13.1 (Selection of Interest Periods)):   One, two or three Months.
     
Reporting Times    
     
Deadline for Lenders to report market disruption in accordance with Clause 14.3 (Market disruption):   Close of business in London on the Reporting Day for the relevant Loan.
     
Deadline for Lenders to report their cost of funds in accordance with Clause 14.4 (Cost of funds):   Close of business on the date falling three Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling three Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).

 

222 

 

 

Schedule 15

 

Daily Non-Cumulative Compounded RFR Rate

 

The Daily Non-Cumulative Compounded RFR Rate for any RFR Banking Day "i" during an Interest Period for a Compounded Rate Loan is the percentage rate per annum (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose) calculated as set out below:

 

 

where:

 

UCCDRi means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i";

 

UCCDRi-1 means, in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding RFR Banking Day (if any) during that Interest Period;

 

dcc means 360 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number;

 

ni means the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; and

 

the Unannualised Cumulative Compounded Daily Rate for any RFR Banking Day (the Cumulated RFR Banking Day) during that Interest Period is the result of the below calculation (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose):

 

 

where:

 

ACCDR means the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day;

 

tni means the number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period;

 

Cumulation Period means the period from, and including, the first RFR Banking Day of that Interest Period to, and including, that Cumulated RFR Banking Day;

 

dcc has the meaning given to that term above; and

 

the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to the decimal places stated in the applicable Compounded Rate Terms) calculated as set out below:

 

 

where:

 

d0 means the number of RFR Banking Days in the Cumulation Period;

 

223 

 

 

Cumulation Period has the meaning given to that term above;

 

i means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period;

 

DailyRatei-LP means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "i";

 

ni means, for any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day;

 

dcc has the meaning given to that term above; and

 

tni has the meaning given to that term above.

 

224 

 

 

Schedule 16

 

Cumulative Compounded RFR Rate

 

The Cumulative Compounded RFR Rate for any Interest Period for a Compounded Rate Loan is the percentage rate per annum (rounded to the same number of decimal places as is specified in the definition of "Annualised Cumulative Compounded Daily Rate" in Schedule 15 (Daily Non-Cumulative Compounded RFR Rate)) calculated as set out below:

 

 

where:

 

d0 means the number of RFR Banking Days during the Interest Period;

 

i means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order during the Interest Period;

 

DailyRatei-LP means for any RFR Banking Day "i" during the Interest Period, the Daily Rate for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "i";

 

ni means, for any RFR Banking Day "i", the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day;

 

dcc means 360 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; and

 

d means the number of calendar days during that Interest Period.

 

225 

 

 

Schedule 17

 

Form of Substitute Affiliate Lender Designation Notice

 

To: [Agent] (as Agent) for itself and each of the other parties to the Agreement (defined below)
   
Cc: [Obligors' Agent]
   
From: [Designating Lender] (the Designating Lender)

 

Dated:

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. Terms defined in the Agreement have the same meaning in this Designation Notice.

 

2.We hereby designate our Affiliate details of which are given below as a Substitute Affiliate Lender in respect of any Loans required to be advanced to [specify name of borrower or refer to all borrowers in a particular jurisdiction etc] (Designated Loans).

 

3.The details of the Substitute Affiliate Lender are as follows:

 

Name:

 

Facility Office:

 

Attention:

 

Jurisdiction of Incorporation:

 

4.By countersigning this notice below the Substitute Affiliate Lender agrees to become a Substitute Affiliate Lender in respect of Designated Loans as indicated above and agrees to be bound by the terms of the Agreement accordingly.

 

5.This Designation Notice has been entered into as a deed on the date stated at the beginning of this Designation Notice.

 

6.This Designation Notice is intended to take effect as a deed notwithstanding a party may only execute this document under hand.

 

7.This Designation Notice and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

8.The Substitute Affiliate Lender confirms, for the benefit of the Agent and without liability to any Obligor that7:

 

(a)in respect of a Canadian Obligor:

 

(i)[not a Canadian Qualifying Lender;]

 

7 Delete as applicable – each Substitute Affiliate Lender is required to confirm which of the three categories it falls within in respect of a Canadian Obligor, Dutch Obligor, Irish Obligor, UK Obligor and US Obligor.

 

226 

 

 

(ii)[a Canadian Qualifying Lender (other than a Canadian Treaty Lender); or]

 

(iii)[a Canadian Qualifying Lender solely on account of being a Treaty Lender;]

 

(b)in respect of a Dutch Obligor:

 

(i)[not a Dutch Qualifying Lender;]

 

(ii)[a Dutch Qualifying Lender other than a Dutch Treaty Lender; or]

 

(iii)[a Dutch Qualifying Lender solely on account of being a Dutch Treaty Lender.]

 

(c)in respect of an Irish Obligor:

 

(i)[not an Irish Qualifying Lender;]

 

(ii)[an Irish Qualifying Lender (other than an Irish Treaty Lender); or]

 

(iii)[an Irish Qualifying Lender on account of being a Treaty Lender;]

 

(d)in respect of a UK Obligor:

 

(i)[not a UK Qualifying Lender;]

 

(ii)[a UK Qualifying Lender (other than a UK Treaty Lender); or]

 

(iii)a UK Qualifying Lender solely on account of being a Treaty Lender;]

 

(e)in respect of a US Obligor:

 

(i)[not a US Qualifying Lender; or]

 

(ii)[a US Qualifying Lender.]

 

9.[The Substitute Affiliate Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [ ]) and is tax resident in [ ], so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and requests that the Obligors’ Agent notifies:

 

(a)each Borrower which is a Party as a Borrower as at the Transfer Date; and

 

(b)each Additional Borrower which becomes an Additional Borrower after the Transfer Date,

 

that it wishes that scheme to apply to the Agreement.]8

 

 

8 Include if Substitute Affiliate Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.

 

227 

 

 

THE SCHEDULE

 

[insert relevant details]

 

[Facility Office address and attention details for notices and account details for payments,]

 

[Designating Lender]  
   
By:  

 

EXECUTED as a deed by [SUBSTITUTE AFFILIATE LENDER] )  
     
acting by [·], )  
     
in the presence of: )  
     
Witness's Signature    
     
Name:    
     
Address:    

 

This Designation Notice is accepted by the Agent on [           ].

 

[Agent]

 

By:

 

WARNING: Please seek Dutch legal advice (a) until competent authority publishes its interpretation of the term public (as referred to in Article 4.1(1) of the Capital Requirements Regulation (EU/575/2013)), if any amount lent to a Dutch borrower is to be designated which is less than EUR 100,000 (or its equivalent in another currency) and (b) as soon as competent authority publishes its interpretation of the term public, if the Substitute Affiliate Lender is considered to be part of the public on the basis of that interpretation.

 

228 

 

 

Schedule 18

 

Form of Sustainability Compliance Certificate

 

To: Wells Fargo Bank, National Association as Agent
   
From: [Obligors' Agent]

 

Dated:

 

Dear Sirs

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is a Sustainability Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Sustainability Compliance Certificate unless given a different meaning in this Sustainability Compliance Certificate.

 

2.This Sustainability Compliance Certificate is delivered with respect to the SLL Reference Period ending [ ] (the Relevant SLL Reference Period).

 

3.We confirm that the results (in accordance with the applicable Calculation Methodology) for the SPT for each KPI for the Relevant SLL Reference Period as verified in the applicable Verification Report are as follows:

 

KPI SPT9 Performance10 SPT met?
KPI [1]     [Yes]/[No]
KPI [2]     [Yes]/[No]
KPI [3]     [Yes]/[No]
KPI [4]     [Yes]/[No]
KPI [5]     [Yes]/[No]

 

As shown above, [ ] SPTs were met and [ ] were not met. Accordingly:

 

(a)[the applicable Sustainability Margin Adjustment is an [increase]/[decrease] to the Margin of [ ]% per annum]/[there is no Sustainability Margin Adjustment]; and

 

(b)the Margin applicable to Facility B following the Sustainability Margin Adjustment is [ ]% per annum.

 

4.We confirm that the Sustainability Report and [the]/[each] Verification Report relating to the Relevant SLL Reference Period and attached hereto is a correct and complete copy of the original and has not been amended or superseded as at the date of this Sustainability Compliance Certificate11.

  

 

9 Set out the applicable SPTs for the Relevant SLL Reference Period for each KPI.
10 Set out the actual performance for each KPI for the Relevant SLL Reference Period.
11 As required by Clause 23.3 (Sustainability Compliance Certificate, Sustainability Report and Verification Report), the Sustainability Report and each Verification Report relating to the Relevant SLL Reference Period should be attached to the Sustainability Compliance Certificate.

 

229 

 

 

Signed  
     
  Certifying Officer  
     
  of  
     
  [Parent]/[Obligors' Agent]  

 

230 

 

 

Schedule 19

 

SLL Commencement Form

 

To:Wells Fargo Bank, National Association as Agent [and [      ] as Sustainability Coordinator(s)]

 

From:[Obligors' Agent]

 

Dated:

 

Dear Sirs

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated _____ June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an SLL Commencement Form. This SLL Commencement Form is a Finance Document. Terms defined in the Agreement have the same meaning when used in this SLL Commencement Form unless given a different meaning in this SLL Commencement Form.

 

2.We hereby confirm to you that:

 

(a)in cooperation with the Sustainability Coordinator(s) we have determined certain KPIs, their Calculation Methodology, Baseline and connected SPTs which are attached as an annex to this SLL Commencement Form; and

 

(b)on and from the SLL Commencement Date, we will comply with all Sustainability Provisions of the Agreement.

 

3.We hereby request you to confirm the occurrence of the SLL Commencement Date and use the table below for the purpose of Clause [12.6(a)] (Margin adjustments - sustainability)

 

  Number of SPTs met Revised Margin following Sustainability
Margin Adjustment
  5 The rate which is [ ]% per annum lower than the rate which would otherwise have been applicable.
  4 [The rate which is [ ]% per annum lower than the rate which would otherwise have been applicable.]/[No adjustment.]
  3 [The rate which is [ ]% per annum lower than the rate which would otherwise have been applicable.]/[No adjustment.]/[The rate which is [ ]% per annum higher than the rate which would otherwise have been applicable.]
  2 [The rate which is [ ]% per annum lower than the rate which would otherwise have been applicable.]/[No adjustment.]/[The rate which is [ ]% per annum higher than the rate which would otherwise have been applicable.]
  1 [The rate which is [ ]% per annum lower than the rate which would otherwise have been applicable.]/[No adjustment.]/[The rate which is [   ]% per annum higher than the rate which would otherwise have been applicable.]
  0 [The rate which is [ ]% per annum higher than the rate which would otherwise have been applicable.]

 

231 

 

 

].

 

Signed  
     
  Certifying Officer  
     
  of  
     
  [Parent]/[Obligors' Agent]  

 

232 

 

 

Annex 1

 

KPI

 

1.KPI [1]

 

[Description of KPI]

 

(a)Scope

 

[·]

 

(b)Applicable ESG Standards (if applicable)

 

[·]

 

(c)Calculation Methodology

 

[·]

 

(d)Baseline

 

[·]

 

(e)SPTs

 

 

SLL
Reference
Period ending

[·]

SLL
Reference
Period ending

[·]

SLL
Reference
Period ending

[·]

SLL
Reference
Period ending

[·]

SLL
Reference
Period ending

[·]

SLL Test Date          
SPTs [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ]

 

2.KPI [2]

 

[Description of KPI]

 

(a)Scope

 

[·]

 

(b)Applicable ESG Standards (if applicable)

 

[·]

 

(c)Calculation Methodology

 

[·]

 

(d)Baseline

 

[·]

 

233 

 

 

(e)SPTs

 

 

SLL
Reference
Period ending

[·]

SLL
Reference
Period ending

[·]

SLL
Reference
Period ending

[·]

SLL
Reference
Period ending

[·]

SLL
Reference
Period ending

[·]

SLL Test Date          
SPTs [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ]

 

3.KPI [3]

 

[Description of KPI]

 

(a)Scope

 

[·]

 

(b)Applicable ESG Standards (if applicable)

 

[·]

 

(c)Calculation Methodology

 

[·]

 

(d)Baseline

 

[·]

 

(e)SPTs

 

 

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL Test Date          
SPTs [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ]

 

4.KPI [4]

 

[Description of KPI]

 

(a)Scope

 

[·]

 

(b)Applicable ESG Standards (if applicable)

 

[·]

 

234 

 

 

(c)Calculation Methodology

 

[·]

 

(d)Baseline

 

[·]

 

(e)SPTs

 

 

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL Test Date          
SPTs [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ]

 

5.KPI [5]

 

[Description of KPI]

 

(a)Scope

 

[·]

 

(b)Applicable ESG Standards (if applicable)

 

[·]

 

(c)Calculation Methodology

 

[·]

 

(d)Baseline

 

[·]

 

(e)SPTs

 

 

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL
Reference
Period
ending

[·]

SLL Test Date          
SPTs [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ] [≥]/[≤] [ ]

 

235 

 

 

Signatories

 

Parent  
   
SMURFIT KAPPA GROUP PLC  
   
   
By: /s/ Ken Bowles  
   
Name: Ken Bowles  
   
Title: CFO / Attorney  
     

 

By: /s/ Gillian Carson-Callan  
   
Name: Gillian Carson-Callan  
   
Title: Company Secretary / Attorney  

 

Signature page to the Facilities Agreement      

 

 

 

 

 

Obligors' Agent  
   
SMURFIT KAPPA INVESTMENTS LIMITED  
   
   
By: /s/ Ken Bowles  
   
Name: Ken Bowles  
   
Title: Authorised Signatory  

 

Signature page to the Facilities Agreement    

     

 

 

 

Original Borrowers

 

[Signature Pages on file with the Agent]

 

Signature page to the Facilities Agreement

 

 

 

 

Original Guarantors

 

[Signature Pages on file with the Agent]

 

Signature page to the Facilities Agreement

 

 

 

 

Coordinators  
   
NATIONAL WESTMINSTER BANK PLC  
   
   
By: /s/ Felix Krefting  
   
Name: Felix Krefting  
   
Title: Director  

 

Signature page to the Facilities Agreement

 

 

 

 

WELLS FARGO BANK, N.A., LONDON BRANCH  
   
   
By: Harvey Hoogakker  
   
Name: Harvey Hoogakker  
   
Title: Managing Director  

 

Signature page to the Facilities Agreement

 

 

 

 

Original Lenders

 

[Signature Pages on file with the Agent]

 

Signature page to the Facilities Agreement    

 

 

 

 

Original Swingline Lenders

 

[Signature Pages on file with the Agent]

 

Signature page to the Facilities Agreement  

 

 

 

 

Bookrunners and Mandated Lead Arrangers

 

[Signature Pages on file with the Agent]

 

Signature page to the Facilities Agreement  

 

 

 

 

Mandated Lead Arrangers

 

[Signature Pages on file with the Agent]

 

Signature page to the Facilities Agreement  

 

 

 

 

The Agent  
   
WELLS FARGO BANK, NATIONAL ASSOCIATION  
   
By: /s/ Andrew Payne  
   
Name: Andrew Payne  
   
Title: Managing Director  

 

Signature page to the Facilities Agreement  

 

 

 

 

Exhibit 10.4

 

Accession Letter

 

From:Smurfit WestRock US Holdings Corporation (the Company) and Smurfit Kappa Investments Limited (the Obligors' Agent)

 

To:Wells Fargo Bank, National Association (the Agent)

 

Dated:2 July 2024

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated 28 June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.

 

2.This Accession Letter shall be effective on and from its date, except that the Company shall have no obligations under this letter or any other Finance Document until the Combination has been consummated. The Obligors’ Agent shall notify the Agent of the consummation of the Combination as soon as practicable thereafter.

 

3.Subject to paragraph 2 above, the Company agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause 28.4 (Additional Guarantors) of the Agreement.

 

4.The Company is a company duly incorporated under the laws of the State of Delaware, United States of America.

 

5.The Company's administrative details are as follows:

 

  Address: Beech Hill, Clonskeagh, Dublin 4,Ireland
     
  Attention: Emer Murnane
     
  Email: [     ]
     
  Telephone: [     ]

 

6.This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

7.This Accession Letter is entered into as a deed.

 

[Signature page follows.]

 

 

 

 

EXECUTION PAGE – Accession Letter

 

SIGNED for and on behalf of

SMURFIT KAPPA INVESTMENTS LIMITED

by its lawfully appointed attorney

 

 

in the presence of    
and delivered as a deed   /s/ Kenneth Bowles
  Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation      

 

[Signature Page to Smurfit WestRock US Holdings Corporation Accession Letter]

 

 

 

 

SIGNED and DELIVERED as a DEED  
     
for and on behalf of  
     
SMURFIT WESTROCK US HOLDINGS CORPORATION  
     
By: /s/ Kenneth Bowles    
Name: Kenneth Bowles  
Title: Authorised Signatory  

 

[Signature Page to Smurfit WestRock US Holdings Corporation Accession Letter]

 

 

 

 

Exhibit 10.5

 

Accession Letter

 

From:WestRock Company (the Company) and Smurfit Kappa Investments Limited (the Obligors' Agent)

 

To:Wells Fargo Bank, National Association (the Agent)

 

Dated:2 July 2024

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated 28 June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.

 

2.This Accession Letter shall be effective on and from its date, except that the Company shall have no obligations under this letter or any other Finance Document until the Combination has been consummated. The Obligors’ Agent shall notify the Agent of the consummation of the Combination as soon as practicable thereafter.

 

3.Subject to paragraph 2 above, the Company agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause 28.4 (Additional Guarantors) of the Agreement.

 

4.The Company is a company duly incorporated under the laws of the State of Delaware, United States of America.

 

5.The Company's administrative details are as follows:

 

  Address: Beech Hill, Clonskeagh, Dublin 4,Ireland
     
  Attention: Emer Murnane
     
  Email: [    ]
     
  Telephone: [    ]

 

6.This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

7.This Accession Letter is entered into as a deed.

 

[Signature page follows.]

 

 

 

 

EXECUTION PAGE – Accession Letter

 

SIGNED for and on behalf of

SMURFIT KAPPA INVESTMENTS LIMITED

by its lawfully appointed attorney

 

in the presence of    
and delivered as a deed   /s/ Kenneth Bowles
  Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation      

 

[Signature Page to WestRock Company Accession Letter]

 

 

 

 

SIGNED and DELIVERED as a DEED

 

for and on behalf of

 

WESTROCK COMPANY  
   
By: /s/ Mikal B. Haislip      
Name: Mikal B. Haislip   
Title: SVP & Treasurer  

 

[Signature Page to WestRock Company Accession Letter]

 

 

 

 

Exhibit 10.6 

 

Accession Letter

 

From:WRKCo Inc. (the Company) and Smurfit Kappa Investments Limited (the Obligors' Agent)

 

To:Wells Fargo Bank, National Association (the Agent)

 

Dated:2 July 2024

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated 28 June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.

 

2.This Accession Letter shall be effective on and from its date, except that the Company shall have no obligations under this letter or any other Finance Document until the Combination has been consummated. The Obligors’ Agent shall notify the Agent of the consummation of the Combination as soon as practicable thereafter.

 

3.Subject to paragraph 2 above, the Company agrees to become an Additional Borrower and an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Borrower and an Additional Guarantor pursuant to Clauses 28.2 (Additional Borrowers) and 28.4 (Additional Guarantors) of the Agreement.

 

4.The Company is to be a Borrower in relation to each of Facility A and Facility B.

 

5.The Company is a company duly incorporated under the laws of the State of Delaware, United States of America.

 

6.The Obligors' Agent confirms that no Default is continuing or would occur as a result of the Company becoming an Additional Borrower.

 

7.The Company's administrative details are as follows:

 

  Address: Beech Hill, Clonskeagh, Dublin 4,Ireland
     
  Attention: Emer Murnane
     
  Email: [    ]
     
  Telephone: [    ]

 

8.This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

9.This Accession Letter is entered into as a deed.

 

[Signature page follows.]

 

 

 

 

EXECUTION PAGE – Accession Letter

 

SIGNED for and on behalf of

SMURFIT KAPPA INVESTMENTS LIMITED

by its lawfully appointed attorney

 

in the presence of    
and delivered as a deed   /s/ Kenneth Bowles
  Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation      

 

[Signature Page to WRKCo Inc. Accession Letter]

 

 

 

 

SIGNED and DELIVERED as a DEED

 

for and on behalf of

 

WRKCO INC.  
   
By: /s/ Mikal B. Haislip      
Name: Mikal B. Haislip   
Title: SVP & Treasurer  

 

[Signature Page to WRKCo Inc. Accession Letter]

 

 

 

 

Exhibit 10.7

 

Accession Letter

 

From:WestRock MWV, LLC (the Company) and Smurfit Kappa Investments Limited (the Obligors' Agent)

 

To:Wells Fargo Bank, National Association (the Agent)

 

Dated:2 July 2024

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated 28 June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.

 

2.This Accession Letter shall be effective on and from its date, except that the Company shall have no obligations under this letter or any other Finance Document until the Combination has been consummated. The Obligors’ Agent shall notify the Agent of the consummation of the Combination as soon as practicable thereafter.

 

3.Subject to paragraph 2 above, the Company agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause 28.4 (Additional Guarantors) of the Agreement.

 

4.The Company is a company duly incorporated under the laws of the State of Delaware, United States of America.

 

5.The Company's administrative details are as follows:

 

  Address: Beech Hill, Clonskeagh, Dublin 4,Ireland
     
  Attention: Emer Murnane
     
  Email: [    ]
     
  Telephone: [    ]

 

6.This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

7.This Accession Letter is entered into as a deed.

 

[Signature page follows.]

 

 

 

 

EXECUTION PAGE – Accession Letter

 

SIGNED for and on behalf of

SMURFIT KAPPA INVESTMENTS LIMITED

by its lawfully appointed attorney

 

in the presence of    
and delivered as a deed   /s/ Kenneth Bowles
  Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation      

 

[Signature Page to WestRock MWV, LLC Accession Letter]

 

 

 

 

SIGNED and DELIVERED as a DEED

 

for and on behalf of

 

WESTROCK MWV, LLC  
   
By: /s/ Mikal B. Haislip      
Name: Mikal B. Haislip   
Title: SVP & Treasurer  

 

[Signature Page to WestRock MWV, LLC Accession Letter]

 

 

 

 

Exhibit 10.8

 

Accession Letter

 

From:WestRock RKT, LLC (the Company) and Smurfit Kappa Investments Limited (the Obligors' Agent)

 

To:          Wells Fargo Bank, National Association (the Agent)

 

Dated:    2 July 2024

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated 28 June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.

 

2.This Accession Letter shall be effective on and from its date, except that the Company shall have no obligations under this letter or any other Finance Document until the Combination has been consummated. The Obligors’ Agent shall notify the Agent of the consummation of the Combination as soon as practicable thereafter.

 

3.Subject to paragraph 2 above, the Company agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause 28.4 (Additional Guarantors) of the Agreement.

 

4.The Company is a company duly incorporated under the laws of the State of Georgia, United States of America.

 

5.The Company's administrative details are as follows:

 

Address:Beech Hill, Clonskeagh, Dublin 4, Ireland
  
Attention:Emer Murnane
  
Email:[ ]
  
Telephone:[ ]

 

This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

6.This Accession Letter is entered into as a deed.

 

[Signature page follows.]

 

 

 

 

EXECUTION PAGE – Accession Letter

 

SIGNED for and on behalf of    
SMURFIT KAPPA INVESTMENTS LIMITED    
by its lawfully appointed attorney    
     
in the presence of    
and delivered as a deed   /s/ Kenneth Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    

Witness Occupation 

    

 

[Signature Page to WestRock RKT, LLC Accession Letter]

 

 

 

 

SIGNED and DELIVERED as a DEED

 

for and on behalf of

 

WESTROCK RKT, LLC 
   
By:/s/ Mikal B. Haislip 
Name: Mikal B. Haislip 
Title:SVP & Treasurer 

 

[Signature Page to WestRock RKT, LLC Accession Letter]

 

 

 

 

Exhibit 10.9

 

Accession Letter

 

From:Smurfit WestRock plc (the Company) and Smurfit Kappa Investments Limited (the Obligors' Agent)

 

To:          Wells Fargo Bank, National Association (the Agent)

 

Dated:    5 July 2024

 

Dear Sirs/Madams

 

Smurfit Kappa Treasury Unlimited Company – $5,100,000,000 Facility Agreement dated 28 June 2024 (the Agreement)

 

1.We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.

 

2.This Accession Letter shall be effective on and from its date, except that the Company shall have no obligations under this letter or any other Finance Document until the Combination has been consummated. The Obligors’ Agent shall notify the Agent of the consummation of the Combination as soon as practicable thereafter.

 

3.Subject to paragraph 2 above, the Company agrees to become the Parent and to be bound by the terms of the Agreement as the Parent pursuant to Clause 28.5 (Accession of the Parent) of the Agreement.

 

4.The Company is a company duly incorporated under the laws of Ireland.

 

5.The Company's administrative details are as follows:
  
Address:Beech Hill, Clonskeagh, Dublin 4, Ireland
  
Attention:Emer Murnane
  
Email:[ ]
  
Telephone:[ ]

 

6.This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

7.This Accession Letter is entered into as a deed.

 

[Signature page follows.]

 

 

 

 

EXECUTION PAGE – Accession Letter

 

SIGNED for and on behalf of    
SMURFIT WESTROCK PLC    
by its lawfully appointed attorney    
     
in the presence of    
and delivered as a deed   /s/ Kenneth Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    
Witness Occupation     

 

[Signature Page to Smurfit WestRock plc Accession Letter]

 

 

 

 

SIGNED for and on behalf of    
SMURFIT KAPPA INVESTMENTS LIMITED    
by its lawfully appointed attorney    
     
in the presence of    
and delivered as a deed   /s/ Kenneth Bowles
    Signature
/s/ Rory Carbery    
Witness (Signature)    
     
2 Grand Canal Square    
Print Address    
     
Solicitor    

Witness Occupation 

    

 

[Signature Page to Smurfit WestRock plc Accession Letter]

 

 

 

Exhibit 10.12

 

EXECUTION VERSION

 

SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

 

This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of July 1, 2024 (the “Signing Date”), by and among, WESTROCK SOUTHEAST, LLC, a Delaware limited liability company (the “Borrower”), the Guarantors party hereto, the Lenders party hereto, the Voting Participants party hereto and COBANK, ACB, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) to the Amended and Restated Credit Agreement dated as of July 7, 2022 (as amended by that certain First Amendment to Credit Agreement dated as of September 27, 2023 and as further amended, restated, amended and restated or otherwise modified from time to time, the “Existing Credit Agreement”), by and among the Borrower, the Guarantors from time to time party thereto, the Administrative Agent and the Lenders referred to therein. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Existing Credit Agreement or in the Amended Credit Agreement (as defined below), as applicable.

 

WHEREAS, WestRock Company, a Delaware corporation (the “Existing Parent”) has entered into that certain transaction agreement dated September 12, 2023 (the “Transaction Agreement”), with Smurfit Kappa Group plc, a public limited company incorporated in Ireland;

 

WHEREAS, in accordance with the terms of the Transaction Agreement, the Existing Parent will be merged into a wholly owned subsidiary of Smurfit Westrock plc, a public limited company, incorporated under the laws of Ireland with company number 607515 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland (the “Parent”), through a series of intermediate steps and transactions whereby the Existing Parent will be the surviving corporation (the “Merger Transaction”);

 

WHEREAS, Smurfit Kappa Investments Limited, a private limited company incorporated in Ireland, as obligors’ agent (the “Obligors’ Agent), intends to enter into a new English law-governed Multicurrency Term and Revolving Facilities Agreement (as amended, restated, amended and restated or otherwise modified from time to time, the “Facilities Agreement”), by and among the Obligors’ Agent (as defined therein), the Obligors (as defined therein) from time to time party thereto, the Finance Parties (as defined therein) from time to time party thereto and Wells Fargo Bank, National Association, as Agent (as defined therein), evidencing a $4,500,000,000 revolving credit facility; and

 

WHEREAS, pursuant to Section 9.1 of the Existing Credit Agreement, the Credit Parties, the Required Lenders (including, for the avoidance of doubt, Voting Participants) and the Administrative Agent desire to amend the Existing Credit Agreement as set forth herein to effect certain amendments.

 

NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

 

Section 1.      Amendments.

 

(a)           The Existing Credit Agreement is, as of the Effective Date (as defined below), hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text or stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text or double-underlined text) as set forth on the pages of the Existing Credit Agreement in the form of Annex A hereto (the Existing Credit Agreement, as affected and so amended by this Amendment, being referred to as the “Amended Credit Agreement”).

 

                                            

 

 

 

(b)           As of the Effective Date (as defined below), Exhibit G of the Existing Credit Agreement is hereby amended and restated to read, “[Reserved]”.

 

(c)           As of the Effective Date (as defined below), Schedules 1.1(a)(i), 2.1(a) and 9.2 of the Existing Credit Agreement are each amended and restated to read, in their entireties, in the forms of Schedules 1.1(a)(i), 2.1(a) and 9.2 attached hereto.

 

(d)           As of the Effective Date (as defined below), Schedule 1.1(a)(ii) is hereby deleted in its entirety.

 

(e)            Except as expressly set forth herein, all Schedules and Exhibits to the Existing Credit Agreement will continue in their present forms as Schedules and Exhibits to the Amended Credit Agreement.

 

Section 2.              Representations and Warranties. The Credit Parties (as defined immediately prior to the Second Amendment Effective Date) represent and warrant to the Lenders and the Administrative Agent as of the Signing Date that:

 

(a)           The representations and warranties of the Credit Parties set forth in the Credit Documents (as defined immediately prior to the Second Amendment Effective Date) are true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) with the same effect as if made on the Signing Date, except to the extent such representations and warranties expressly relate to an earlier date.

 

(b)           No Default or Event of Default (each as defined immediately prior to the Second Amendment Effective Date) has occurred and is continuing.

 

Section 3.              Conditions to Signing. The Signing Date shall occur upon satisfaction of the following conditions precedent:

 

(a)           the Administrative Agent (or its counsel) shall have received from the Credit Parties and the Required Lenders (including Voting Participants), a counterpart of this Amendment signed on behalf of each such party;

 

(b)           the Administrative Agent (and its counsel) shall have satisfactorily completed of reasonable and customary business and legal due diligence; provided that the Administrative Agent (for itself and its counsel) hereby acknowledges that it has, prior to the Signing Date, satisfactorily completed its business and legal due diligence;

 

(c)           the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying that the representations and warranties set forth in Section 2 hereof are true and correct as of the Signing Date;

 

(d)           the Administrative Agent (or its counsel) shall have received a Joinder Agreement (the “Second Amendment Joinder Agreement”) dated as of the Signing Date but effective as of the Effective Date and duly executed by each of:

 

(i)            Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland with company number 177324 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland;

 

 -2- 

 

 

(ii)           Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland with company number 358039 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland;

 

(iii)           Smurfit International B.V., a private limited company incorporated under the laws of the Netherlands and registered in the Trade Register of Chamber of Commerce under number 33149443;

 

(iv)           Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland with company number 433527 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland;

 

(v)           Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland with company number 380620 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland;

 

(vi)          Smurfit Kappa Treasury Funding Designated Activity Company, a designated activity company incorporated under the laws of Ireland with company number 239631 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland;

 

(vii)         the Parent; and

 

(viii)        Smurfit WestRock US Holdings Corporation (f/k/a Latour Merger Sub Corporation), a Delaware corporation (the entities listed in Sections 3(d)(i)-(viii) referred to either individually as a “New Guarantor” or collectively as the “New Guarantors”);

 

(e)            to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, receipt by the Administrative Agent of a certification regarding beneficial ownership required by the Beneficial Ownership Regulation in relation to the Borrower and the Parent; provided that each of the Borrower and Parent shall receive at least ten (10) Business Days’ prior written notice in respect of any request for such certification;

 

(f)            receipt by the Administrative Agent of the following:

 

(i)            a copy of the constitutional documents (or equivalent documents such as by-laws and certificate of incorporation) of each New Guarantor;

 

(ii)           a copy of a resolution of the board of directors (or any other competent corporate body) of each New Guarantor:

 

(A)          approving the terms of, and the transactions contemplated by, the Second Amendment Joinder Agreement and the other Credit Documents to which it is a party and resolving that it execute the Second Amendment Joinder Agreement and the other Credit Documents to which it is a party;

 

(B)           if applicable, approving the terms of the power of attorney referred to in clause (e)(iv) below and resolving that it execute that power of attorney;

 

(C)           authorizing a specified person or persons to execute on its behalf the Second Amendment Joinder Agreement and the other Credit Documents to which it is a party; and

 

 -3- 

 

 

(D)          authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the Second Amendment Joinder Agreement and the other Credit Documents to which it is a party;

 

(iii)           a specimen of the signature of each person authorized by the resolution referred to in clause (f)(ii) above and signing the Second Amendment Joinder Agreement;

 

(iv)          if applicable, a power of attorney of each New Guarantor authorizing a specified person or persons to execute the Credit Documents to which that New Guarantor is a party on its behalf;

 

(v)           if applicable, a copy of a resolution signed by all the holders of the issued shares in each New Guarantor (other than the Parent and Smurfit Kappa Group plc), approving the terms of, and the transactions contemplated by, the Credit Documents to which the New Guarantor is a party;

 

(vi)          if applicable, a copy of:

 

(A)          a request for advice from the works council of each New Guarantor incorporated in The Netherlands in respect of the transactions contemplated by the Credit Documents to which it is a party; and

 

(B)           an unconditional positive works council advice of the works council of each New Guarantor incorporated in The Netherlands;

 

(vii)         a certificate of each New Guarantor signed by an authorized signatory or authorized signatories with authority to validly represent that New Guarantor certifying that:

 

(A)          Guaranteeing the Credit Party Obligations would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded;

 

(B)           each copy document relating to it specified in this clause (g) is correct, complete and in full force and effect as at a date no earlier than the date of this Amendment;

 

(C)           in the case of the certificate delivered by each Irish Credit Party only, it and each of the other Credit Parties are members of a group of companies within the meaning of section 8 of the Irish Companies Act and for the purposes of section 243 of the Irish Companies Act 2014; and

 

(D)          in the case of the certificate delivered by each Irish Credit Party only, the entry into the Credit Documents by that Irish Credit Party does not constitute unlawful financial assistance within the meaning of section 82 of the Companies Act 2014 of Ireland or breach section 239 of the Companies Act 2014 of Ireland; and

 

 -4- 

 

 

(g)           the Administrative Agent has received: (i) a legal opinion of Hogan Lovells US LLP, special New York counsel to Smurfit WestRock US Holdings Corporation (f/k/a Latour Merger Sub Corporation), (ii) a legal opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, special New York counsel to the Credit Parties, (iii) legal opinion of the general counsel of the Existing Parent and (iv) with respect to each New Guarantor, a legal opinion of applicable legal advisers or internal counsel in the jurisdiction in which that New Guarantor is incorporated or formed.

 

Section 4.              Conditions to Effectiveness. This Amendment shall become effective on the last date (the “Effective Date”) on which each of the following has occurred, so long as such date is on or prior to March 12, 2025:

 

(a)           the Combination (as defined in the Amended Credit Agreement) has occurred;

 

(b)           receipt of evidence by the Administrative Agent that the Facilities Agreement has closed and is effective;

 

(c)           the Administrative Agent shall have received a certificate of a Responsible Officer of the Credit Parties’ Agent confirming that the Combination (as defined in the Amended Credit Agreement) has occurred; and

 

(d)           the Borrower shall have paid all fees and expenses due and payable pursuant to (i) Section 5 hereof and (ii) that certain mandate letter dated as of May 24, 2024, by and among the Administrative Agent, the Parent and the Existing Parent; provided that any fees which are stated to be paid on the Effective Date may be paid, at the Borrower’s sole election, on the Effective Date or within five (5) Business Days of the Effective Date.

 

Section 5.              Expenses. The Borrower agrees to reimburse the Administrative Agent for the reasonable and documented out-of-pocket expenses incurred by them, including the reasonable and documented fees, charges and disbursements of Moore & Van Allen PLLC, counsel for the Administrative Agent, in connection with this Amendment and, to the extent required by Section 9.5 of the Existing Credit Agreement, otherwise in connection with the Credit Documents.

 

Section 6.              Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or by email in Adobe “.pdf” format shall be effective as delivery of a manually executed counterpart hereof.

 

Section 7.              Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

Section 8.              Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

 

 -5- 

 

 

Section 9.              Effect of Amendment. On and after the Effective Date, each reference in the Existing Credit Agreement to “this Credit Agreement”, “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Existing Credit Agreement, and each reference in the Notes and each of the other Credit Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Credit Agreement, shall mean and be a reference to the Amended Credit Agreement, as amended or waived by this Amendment. The Existing Credit Agreement, the Notes and each of the other Credit Documents, as specifically amended or waived by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Existing Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other provision of the Existing Credit Agreement or any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. The parties hereto expressly acknowledge that it is not their intention that this Amendment or any of the other Credit Documents executed or delivered pursuant hereto constitute a novation of any of the obligations, covenants or agreements contained in the Existing Credit Agreement or any other Credit Document, but rather constitute a modification thereof pursuant to the terms contained herein. This Amendment constitutes a Credit Document.

 

Section 10.            Acknowledgement and Consent. (a) Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of the Existing Credit Agreement and this Amendment and consents to the amendments of the Existing Credit Agreement effected pursuant to this Amendment. Each Guarantor hereby confirms that each Credit Document to which it is a party or otherwise bound will continue to guarantee to the fullest extent possible in accordance with the Credit Documents the payment and performance of all “Credit Party Obligations” under each of the Credit Documents to which is a party (in each case as such terms are defined in the applicable Credit Document).

 

(b)           Each Guarantor acknowledges and agrees that any of the Credit Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment.

 

Section 11.            Termination. If the Parent determines that the Merger Transaction will not be consummated, the Parent may, by providing written notice to the Administrative Agent (for delivery to each Lender), terminate this Amendment, which termination shall be deemed to occur immediately upon receipt of such written notice by the Administrative Agent; provided that any such termination shall not alter the Borrower’s reimbursement obligations pursuant to Section 5 of this Amendment. For the avoidance of doubt, if the Effective Date referred to above does not occur on or before March 12, 2025, then this Amendment shall be nullified and the Term Loans shall remain evidenced and governed by the Existing Credit Agreement without giving effect to the Amendment.

 

[Signature Pages Follow]

 

 -6- 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.

 

BORROWER: WESTROCK SOUTHEAST, LLC,
  a Delaware limited liability company
   
  By: /s/ M. Benjamin Haislip
  Name: M. Benjamin Haislip
  Title: Senior Vice President and Treasurer
   
GUARANTORS: WESTROCK COMPANY,
  a Delaware corporation
   
  By: /s/ M. Benjamin Haislip
  Name: M. Benjamin Haislip
  Title: Senior Vice President and Treasurer
   
  WESTROCK RKT, LLC,
  a Georgia limited liability company
   
  By: /s/ M. Benjamin Haislip
  Name: M. Benjamin Haislip
  Title: Senior Vice President and Treasurer
   
  WRKCO INC.,
  a Delaware corporation
   
  By: /s/ M. Benjamin Haislip
  Name: M. Benjamin Haislip
  Title: Senior Vice President and Treasurer
   
  WESTROCK MWV, LLC,
  a Delaware limited liability company
   
  By: /s/ M. Benjamin Haislip
  Name: M. Benjamin Haislip
  Title: Senior Vice President and Treasurer

 

[Signature Page to WestRock Second Amendment]

 

 

 

 

ADMINISTRATIVE AGENT:      COBANK, ACB,
  as Administrative Agent
   
  By: /s/ Robert Prickett
  Name: Robert Prickett
  Title: Vice President

 

[Signature Page to WestRock Second Amendment]

 

 

 

 

LENDERS: COBANK, ACB,
  as a Lender
   
  By: /s/ Robert Prickett
  Name: Robert Prickett
  Title: Vice President

 

[Signature Page to WestRock Second Amendment]

 

 

 

 

VOTING PARTICIPANTS:

 

[Signature Pages on file with Administrative Agent]

 

[Signature Page to WestRock Second Amendment]

 

 

 

 

Annex A

 

Amended Credit Agreement

 

(see attached)

 

 

 

 

ANNEX A

to

Second Amendment to Amended and Restated Credit Agreement

dated as of July 1, 2024

 

$600,000,000

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of July 7, 2022

 

among,

 

WESTROCK SOUTHEAST, LLC,

as the Borrower,

THE GUARANTORS FROM TIME TO TIME PARTY HERETO,

 

THE LENDERS PARTIES HERETO,

 

and

 

COBANK, ACB,
as Administrative Agent

 

 

 

COBANK, ACB,
as Lead Arranger and Book Runner

 

 

 

 

TABLE OF CONTENTS

 

Page

 

Article I DEFINITIONS and Interpretation 6
1.1 Definitions 6
1.2 Computation of Time Periods 36
1.3 Additional Construction Matters 36
1.4 Terms Generally; Construction 38
1.5 Rates 38
1.6 Personal Liability 39
1.7 Dutch Terms 39
1.8 Irish Terms 40
Article II CREDIT FACILITY 40
2.1 Credit Parties’ Agent 40
2.2 [Reserved] 41
2.3 [Reserved] 41
2.4 Closing Date Term Loan 42
2.5 [Reserved] 42
2.6 [Reserved] 42
2.7 [Reserved] 42
2.8 [Reserved] 42
2.9 Default Rate 43
2.10 Conversion Options 43
2.11 Prepayments 44
2.12 [Reserved] 47
2.13 Fees 47
2.14 Computation of Interest and Fees 48
2.15 Pro Rata Treatment and Payments 49
2.16 Non-Receipt of Funds by the Administrative Agent 51
2.17 Benchmark Replacement Setting 53
2.18 Illegality 54
2.19 Requirements of Law 55
2.20 Indemnity 57
2.21 Taxes 58
2.22 [Reserved] 62
2.23 Replacement of Lenders 62
2.24 [Reserved] 62
2.25 Defaulting Lenders 62
2.26 Incremental Term Loans 64
2.27 Circumstances Affecting Term SOFR 67
Article III REPRESENTATIONS AND WARRANTIES 67
3.1 Status 67
3.2 Binding Obligations 67
3.3 Non-Conflict with Other Obligations 68
3.4 Power and Authority 68
3.5 Validity and Admissibility in Evidence 68
3.6 Governing Law and Enforcement 68

 

 i

 

 

3.7 [Reserved] 68
3.8 No Filing or Stamp Taxes 68
3.9 No Default 69
3.10 Financial Statements 69
3.11 Environment 69
3.12 Anti-Corruption 69
3.13 Sanctions 70
3.14 Pari Passu Ranking 70
3.15 No Proceedings 70
3.16 Compliance with ERISA 70
3.17 Investment Company Act 71
3.18 Margin Stock and United States Securities Exchange Act 71
3.19 Use of Proceeds 71
3.20 Compliance with Trading with the Enemy Act, OFAC Rules and Regulations, USA Patriot Act, FCPA and Beneficial Ownership Regulation 71
3.21 Repetition 72
Article IV CONDITIONS PRECEDENT 72
4.1 Conditions to Closing Date 72
Article V Information Undertakings 74
5.1 Financial Statements 74
5.2 Requirements as to Financial Statements 75
5.3 [Reserved] 76
5.4 [Reserved] 76
5.5 Information: Miscellaneous 76
5.6 Notification of Default 77
5.7 Use of Websites 77
5.8 “Know Your Customer” Information, etc 78
Article VI general Undertakings 78
6.1 Authorizations 79
6.2 Compliance with Laws 79
6.3 Negative Pledge 79
6.4 Disposals 84
6.5 Financial Indebtedness 84
6.6 Mergers and Sale of Assets 86
6.7 Change of Business 86
6.8 Pari Passu Ranking 86
6.9 Use of Proceeds 86
6.10 ERISA 87
6.11 Additional Guarantors 87
6.12 Resignation of a Guarantor 88
6.13 Insurance 88
Article VII EVENTS OF DEFAULT 88
7.1 Non-Payment 88
7.2 Other Obligations 89
7.3 Misrepresentation 89
7.4 Cross Acceleration 89

 

 ii

 

 

7.5 Insolvency 90
7.6 Insolvency Proceedings 90
7.7 Creditors’ Process 91
7.8 Ownership of Credit Parties 91
7.9 Unlawfulness 91
7.10 Repudiation 91
7.11 United States Bankruptcy Laws 91
7.12 [Reserved] 92
7.13 Acceleration; Remedies 92
7.14 Permitted Receivables Securitizations 92
7.15 Clean-Up Period 93
Article VIII AGENCY PROVISIONS 94
8.1 Appointment 94
8.2 Delegation of Duties 94
8.3 Exculpatory Provisions 95
8.4 Reliance by Administrative Agent 96
8.5 Notice of Default 96
8.6 Non-Reliance on Administrative Agent and Other Lenders 97
8.7 Administrative Agent in its Individual Capacity 97
8.8 Successor Administrative Agent 97
8.9 Patriot Act Notice 98
8.10 Guaranty and Borrower Matters 98
8.11 Withholding 99
8.12 Certain ERISA Matters 99
8.13 Erroneous Payments 101
Article IX MISCELLANEOUS 103
9.1 Amendments and Waivers 103
9.2 Notices 107
9.3 No Waiver; Cumulative Remedies 108
9.4 Survival of Representations and Warranties 108
9.5 Payment of Expenses 108
9.6 Successors and Assigns; Participations; Purchasing Lenders 110
9.7 Adjustments; Set-off 115
9.8 Table of Contents and Section Headings 116
9.9 Counterparts; Electronic Execution 116
9.10 Severability 116
9.11 Integration 116
9.12 Governing Law 117
9.13 Consent to Jurisdiction and Service of Process 117
9.14 Confidentiality 118
9.15 Acknowledgments 118
9.16 Waivers of Jury Trial 119
9.17 Judgment Currency 119
9.18 Subordination of Intercompany Debt 119
9.19 Acknowledgment and Consent to Bail-In of Affected Financial Institutions 120
9.20 Farm Credit Equities 121

 

 iii

 

 

9.21 Most Favored Lender Provisions 123
9.22 Amendment and Restatement 124
Article X GUARANTY OF BORROWER OBLIGATIONS 124
10.1 The Guaranty 124
10.2 Bankruptcy 125
10.3 Nature of Liability 125
10.4 Independent Obligation 125
10.5 Authorization 125
10.6 Reliance 126
10.7 Waiver 126
10.8 Limitation on Enforcement 127
10.9 Confirmation of Payment 128
10.10 Keepwell 128
10.11 Guaranty Limitations; England 128
10.12 Guaranty Limitations; Ireland 128
10.13 Guaranty Limitations; US. 129

 

 iv

 

 

EXHIBIT

Exhibit A [Reserved]
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Extension
Exhibit D Form of Designation Notice
Exhibit E Form of Closing Date Term Loan Note
Exhibit F Form of Tax Exempt Certificate
Exhibit G [Reserved]
Exhibit H Form of Joinder Agreement
Exhibit I Form of Assignment Agreement
Exhibit J Form of Discounted Prepayment Option Notice
Exhibit K Form of Lender Participation Notice
Exhibit L Form of Discounted Voluntary Prepayment Notice
   
SCHEDULES  
Schedule 1.1(a)(i) Existing MWV Notes
Schedule 2.1(a) Lenders, Voting Participants and Commitments
Schedule 9.2 Lending Offices

 

 v

 

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 7, 2022 (this “Agreement” or “Credit Agreement”), is by and among WESTROCK SOUTHEAST, LLC, a Delaware limited liability company (“WRK Southeast”), the Parent (as defined herein), the other guarantors from time to time party hereto, the lenders from time to time party hereto, and COBANK, ACB, as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”).

 

W I T N E S S E T H

 

WHEREAS, the Borrower has requested that the Lenders provide a term loan facility for the purposes hereinafter set forth; and

 

WHEREAS, the Lenders have agreed to make the requested term loan facility available to the Borrower on the terms and conditions hereinafter set forth.

 

NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Article I

 

DEFINITIONS and Interpretation

 

1.1          Definitions.

 

As used in this Credit Agreement, the following terms have the meanings specified below unless the context otherwise requires:

 

“Acceptable Price” has the meaning specified in Section 2.11(c)(iii).

 

“Acceptance Date” has the meaning specified in Section 2.11(c)(ii).

 

“Accounting Principles” means (a) US GAAP; or (b) IFRS, as selected from time to time by the Credit Parties’ Agent or the Parent by notice to the Administrative Agent, in each case as in effect from time to time and interpreted in line with the Group’s accounting policies as applied in the audited financial statements.

 

“Acquisition” means any acquisition, whether by stock purchase, asset purchase, merger, amalgamation, consolidation or otherwise, of a Person or a business line of a Person.

 

“Additional Guarantor” means each Person that becomes a Guarantor by execution of a Joinder Agreement in accordance with Section 6.11.

 

“Adjusted Daily Simple SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Daily Simple SOFR for such calculation plus (b) 0.10% per annum; provided that if Adjusted Daily Simple SOFR as so determined is less than the Floor, then Adjusted Daily Simple SOFR shall be deemed to be the Floor.

 

 6 

 

 

“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined is less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.

 

“Administrative Agent” has the meaning set forth in the introductory paragraph hereof, together with any successors or assigns.

 

“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.

 

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

“Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

 

“Agreement” has the meaning set forth in the introductory paragraph hereof.

 

“Agreement Currency” has the meaning specified in Section 9.17.

 

“Alternate Base Rate” means, at any time, the rate per annum equal to the highest of (a) the Prime Rate at such time, (b) the Federal Funds Rate at such time plus 0.50% and (c) Adjusted Term SOFR for a one-month tenor in effect on the applicable date of determination plus 1.00%. Each change in the Alternate Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate or the Adjusted Term SOFR, as applicable (provided that clause (c) shall not be applicable during any period in which Adjusted Term SOFR is unavailable or unascertainable). Notwithstanding the foregoing, in no event shall the Alternate Base Rate be less than 0.00% per annum.

 

“Alternate Base Rate Term SOFR Determination Day” has the meaning specified in clause (b) of the definition of “Term SOFR.”

 

“Annual Financial Statements” has the meaning given to it in Section 5.10.

 

“Anti-Corruption Laws” means:

 

(a)            the Executive Order;

 

(b)            the Bank Secrecy Act (31 USC. §§ 5311 et seq.);

 

(c)            the Money Laundering Control Act of 1986 (18 USC. §§ 1956 et seq.);

 

(d)            the USA Patriot Act;

 

(e)            any similar law enacted in the United States after the Second Amendment Effective Date; and

 

(f)            any laws, rules, and regulations of any jurisdiction applicable to the Parent or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.

 

“Applicable Discount” has the meaning specified in Section 2.11(c)(iii).

 

 7 

 

 

“Applicable Percentage” means, for any day, the percentages per annum set forth in the table below corresponding with the then applicable Level, which will be the applicable Level determined by reference to the Rating (the “Ratings Level”), such that Level I is the lowest Level and Level IV is the highest Level.

 

For purposes of the foregoing, (a) (i) if the applicable Ratings established by Moody’s and S&P are different but correspond to consecutive pricing levels, then the Ratings Level will be based on the higher applicable Rating (e.g., if Moody’s applicable Rating corresponds to Level I and S&P’s applicable Rating corresponds to Level II, then the Ratings Level will be Level I), and (ii) if the applicable Ratings established by Moody’s and S&P are more than one pricing level apart, then the Ratings Level will be based on the rating which is one level higher than the lower rating (e.g., if Moody’s and S&P’s applicable Ratings correspond to Levels I and IV, respectively, then the Ratings Level will be Level III), (b) in the event that either S&P or Moody’s (but not both) shall no longer issue a Rating, the Ratings Level shall be determined by the remaining Rating, and (c) in the event that neither S&P nor Moody’s issues a Rating, unless and until the date, if any, that the Parent and the Required Lenders agree on a different arrangement, the existing Ratings Level shall continue in effect for the 60-day period immediately following such event, and subsequent to such period the Ratings Level shall be Level IV.

 

Level Rating
(S&P/Moody’s)		 Applicable
Percentage for
Term SOFR Rate
Loans		 Applicable
Percentage
for Base
Rate Loans
I BBB / Baa2
(or better)		 1.650% 0.650%
II BBB- / Baa3 1.775% 0.775%
III BB+ / Ba1 2.025% 1.025%
IV BB / Ba2 (or worse) 2.275% 1.275%

 

Each change in the Applicable Percentage resulting from a publicly announced change in the Ratings shall be effective, during the period commencing on the third (3rd) Business Day following delivery by the Credit Parties’ Agent to the Administrative Agent of notice thereof, which notice shall be delivered within five (5) Business Days following any such publicly announced change and ending on the date immediately preceding the effective date of the next such change. It is acknowledged and agreed that nothing contained herein shall limit the rights of the Administrative Agent and the Lenders under the Credit Documents, including their rights under Sections 2.9 and 7.13.

 

“Approved Fund” means any Fund that is administered, managed or underwritten by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“Assignment Agreement” means an assignment and assumption agreement substantially in the form set out in Exhibit I or any other form agreed between the relevant assignor and assignee.

 

“Authorization” means an authorization, consent, approval, resolution, license, exemption, filing, notarisation or registration, in each case, required by law or regulation.

 

 8 

 

 

“Available Tenor” means, as of any date of determination and with respect to any then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.17(d).

 

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of any Affected Financial Institution.

 

“Bail-In Legislation” means (a) with respect to any EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

“Bankruptcy Code” means the body of federal bankruptcy law, embodied in Title 11 of the United States Code (11 U.S.C. ss 101 to 1532).

 

“Base Rate Loans” means any Loan bearing interest at a rate based upon the Alternate Base Rate.

 

“Benchmark” means, initially, with respect to any Credit Party Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, U.S. Dollars, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or then-current Benchmark for U.S. Dollars, then “Benchmark” means, with respect to such Credit Party Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, U.S. Dollars, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.17.

 

“Benchmark Replacement” means, with respect to any Benchmark Transition Event for any then-current Benchmark, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

 

(1)            in the case of any Loan denominated in U.S. Dollars, the Adjusted Daily Simple SOFR; or

 

(2)            the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Parent as the replacement for such Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in U.S. Dollars at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents.

 

 9 

 

 

“Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Parent for the applicable Corresponding Tenor giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in U.S. Dollars.

 

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark for U.S. Dollars:

 

(a)           in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

 

(b)           in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

 

For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Transition Event” means, with respect to the then-current Benchmark for U.S. Dollars, the occurrence of one or more of the following events with respect to such Benchmark:

 

(a)            a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

 

 10 

 

 

(b)            a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(c)            a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

 

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Transition Start Date” means, with respect to any Benchmark, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than ninety (90) days after such statement or publication, the date of such statement or publication).

 

“Benchmark Unavailability Period” means, with respect to any then-current Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date with respect to such Benchmark pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.17(a) and (y) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.17(a).

 

“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

 

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

 

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

“Borrower” means (a) initially, WRK Southeast and (b) any other Person that becomes the Borrower in accordance with Section 2.26(d), Section 6.4(a) or Section 9.20(d).

 

“Borrowing Minimum” means (a) in the case of Term SOFR Loans, $2,000,000 and (b) in the case of Base Rate Loans, $1,000,000.

 

“Borrowing Multiple” means $1,000,000.

 

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in Greenwood Village, Colorado or New York, New York are authorized or required by law to close.

 

 11 

 

 

“Canadian AML Acts” means applicable Canadian law regarding anti-money laundering, anti-terrorist financing, government sanction and “know your client” matters, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).

 

“Capital Stock” means (i) in the case of a corporation, capital stock, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (iii) in the case of a partnership, units or partnership interests (whether general or limited), (iv) in the case of a limited liability company, membership interests and (v) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distribution of assets of, the issuing Person.

 

“Captive Insurance Subsidiary” means any Subsidiary of Parent that is subject to regulation as an insurance company (and any Subsidiary thereof).

 

“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

 

“Cash Management Bank” means any Person that, (i)(a) at the time it enters into a Cash Management Agreement, is a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent or (b) is a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent on the Closing Date and the Cash Management Agreement to which such Person is a party was entered into on or prior to the Closing Date (even if such Person ceases to be a Lender or the Administrative Agent or such Person’s Affiliate ceased to be a Lender or the Administrative Agent), in each case (a) or (b) in its capacity as a party to such Cash Management Agreement; provided, in the case of a Cash Management Agreement with a Person who is no longer a Lender, such Person shall be considered a Cash Management Bank only through the stated maturity date (without extension or renewal or increase in amount) of such Cash Management Agreement and (ii) to the extent it is not a Lender, has provided the Administrative Agent with a fully executed Designation Notice, substantially in the form of Exhibit D.

 

“Change in Control” means (i) as applied to the Parent, any Person or “Group” (as defined in Section 13(d)(3) of the Exchange Act, but excluding (A) any employee benefit or stock ownership plans of the Parent or any of its Subsidiaries, and (B) members of the Board of Directors and executive officers of the Parent as of the Second Amendment Effective Date, members of the immediate families of such members and executive officers, and family trusts and partnerships established by or for the benefit of any of the foregoing individuals) shall have acquired more than thirty percent (30%) of the combined voting power of all classes of common stock of the Parent, except that the Parent’s purchase of its common stock outstanding on the Second Amendment Effective Date which results in one or more of the Parent’s shareholders of record as of the Second Amendment Effective Date controlling more than thirty percent (30%) of the combined voting power of all classes of the common stock of the Parent shall not constitute an acquisition hereunder and (ii) subject to Section 9.20(d) (and except as otherwise permitted under Section 6.4 or Section 6.6), the Borrower shall cease to be a Wholly-Owned Subsidiary of the Parent. Notwithstanding the foregoing, the consummation of the Permitted Holdco Reorganization shall not constitute a Change in Control under this Agreement.

 

“Class” means (i) with respect to any Commitment, its character as a Closing Date Term Loan Commitment or an Incremental Term Loan Commitment of a particular series, (ii) with respect to any Loan, its character as a Closing Date Term Loan or an Incremental Term Loan of a particular series and (iii) with respect to any Lender, its character as a Lender holding Commitments or Loans of a particular Class.

 

“Closing Date” means the date hereof (which, for the avoidance of doubt, is July 7, 2022).

 

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“Closing Date Term Loan” has the meaning set forth in Section 2.4(a).

 

“Closing Date Term Loan Commitment” means, with respect to each Closing Date Term Loan Lender, the commitment of such Closing Date Term Loan Lender to make its portion of the Closing Date Term Loan in a principal amount equal to such Closing Date Term Loan Lender’s Closing Date Term Loan Commitment Percentage of the Closing Date Term Loan Committed Amount.

 

“Closing Date Term Loan Commitment Percentage” means, for any Closing Date Term Loan Lender, the percentage identified as its Closing Date Term Loan Commitment Percentage on Schedule 2.1(a), as such percentage may be modified in connection with any Incremental Term Loan Commitment and/or any assignment made in accordance with the provisions of Section 9.6(b).

 

“Closing Date Term Loan Committed Amount” has the meaning set forth in Section 2.4(a).

 

“Closing Date Term Loan Lender” means, as of any date of determination, any Lender that holds a Closing Date Term Loan Commitment or a portion of the outstanding Closing Date Term Loan on such date.

 

“Closing Date Term Loan Note” or “Closing Date Term Loan Notes” means the promissory notes of the Borrower in favor of each of the Closing Date Term Loan Lenders that requests a promissory note evidencing the portion of the Closing Date Term Loan provided pursuant to Section 2.4(d), individually or collectively, as appropriate, as such promissory notes may be amended, modified, restated, supplemented, extended, renewed or replaced from time to time.

 

“CoBank” means CoBank, ACB, and its successors.

 

“Code” means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.

 

“Combination” means:

 

(a)            the acquisition of Smurfit Kappa Group by Smurfit WestRock by means of a scheme of arrangement under section 450 of the Irish Companies Act; and

 

(b)            the merger of Sun Merger Sub, LLC with and into WestRock Company.

 

“Commitment” means the Closing Date Term Loan Commitment and/or any Incremental Term Loan Commitment, individually or collectively, as appropriate.

 

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

“Conforming Changes” means, with respect to the use or administration of an initial Benchmark or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate”, the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.20 and other technical, administrative or operational matters) that the Administrative Agent decides, in consultation with the Parent, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides, in consultation with the Parent, is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).

 

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“Consolidated Company Investments” means Acquisitions or other Investments that become part of the Group (or Property of the Group, including by way of merger, consolidation or amalgamation).

 

“Consolidated Total Assets” means, at any time, the total amount of all assets of the Group (calculated in accordance with the Accounting Principles) calculated at that time by reference to the most recent Financial Statements delivered under this Agreement.

 

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

 

“Credit Agreement” has the meaning set forth in the introductory paragraph hereof.

 

“Credit Documents” means a collective reference to this Credit Agreement, the Notes, the Fee Letter, any Joinder Agreement and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto (excluding, however, any Guaranteed Hedging Agreement and any Guaranteed Cash Management Agreement).

 

“Credit Parties’ Agent” means:

 

(a)            Smurfit Kappa Investments Limited; or

 

(b)            any other person which becomes the Credit Parties’ Agent in accordance with paragraphs (c) and (d) of Section 2.1 or as a result of being the surviving entity following a Permitted Reorganization involving a person which was the Credit Parties’ Agent immediately prior to such Permitted Reorganization (provided that such surviving entity remains a Guarantor).

 

“Credit Party” means any of the Parent, any other Guarantor or the Borrower.

 

“Credit Party Obligations” means, without duplication, (i) all of the obligations of the Credit Parties to the Lenders and the Administrative Agent, whenever arising, under this Credit Agreement and the other Credit Documents (including any interest accruing after the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect to any Credit Party, regardless of whether such interest is an allowed claim under the Bankruptcy Code) and (ii) all liabilities and obligations, whenever arising, owing from any Credit Party or any of its Subsidiaries to any Hedging Agreement Provider under any Guaranteed Hedging Agreement or to any Cash Management Bank under any Guaranteed Cash Management Agreement. Notwithstanding anything to the contrary contained in this Credit Agreement or any provision of any other Credit Document, Credit Party Obligations shall not extend to or include any Excluded Swap Obligation.

 

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.

 

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“Default” means an Event of Default or any event or circumstance specified in Article VII which would (with the expiry of a grace period, the giving of notice, or any combination of them) be an Event of Default.

 

“Defaulting Lender” means, at any time, any Lender that, at such time, (a) has failed to fund any portion of any Term Loan required to be funded by it hereunder within two Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent and the Credit Parties’ Agent in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, unless such amount is the subject of a good faith dispute, (c) has notified any Credit Party, the Administrative Agent or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply or has failed to comply with its funding obligations under this Agreement or under other agreements generally in which it commits or is obligated to extend credit, or (d) has become or is, or has a direct or indirect parent company that has become or is, insolvent or has become, or has a direct or indirect parent company that has become, the subject of a bankruptcy or insolvency proceeding, or has had, or has a direct or indirect parent company that has had, a receiver, conservator, trustee or custodian appointed for it, or has taken, or has a direct or indirect parent company that has taken, any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or has become or has a direct or indirect parent company that has become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of (x) the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority or (y) in the case of a solvent Person, the precautionary appointment of an administrator, guardian, custodian or other similar official by a Governmental Authority under or based on the applicable law of the country where such Person is subject to home jurisdiction supervision if any applicable law requires that such appointment not be publicly disclosed, in any such case, so long as such ownership interest or appointment, as applicable, does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

 

“Designated Website” has the meaning given to it in Section 5.7.

 

“Designation Notice” means a notice substantially in the form of Exhibit D.

 

“Discount Range” has the meaning specified in Section 2.11(c)(ii).

 

“Discounted Prepayment Option Notice” means a Discounted Prepayment Option Notice substantially in the form of Exhibit J.

 

“Discounted Voluntary Prepayment” has the meaning specified in Section 2.11(c)(i).

 

“Discounted Voluntary Prepayment Notice” means a Discounted Voluntary Prepayment Notice substantially in the form of Exhibit L.

 

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“Disqualified Institution” means (a) certain banks, financial institutions and other institutional lenders or investors or any competitors of the Parent that, in each case, have been specified by name to the Administrative Agent by the Parent in writing prior to the Closing Date (collectively, the “Identified Institutions”) and (b) with respect to such Identified Institutions, Persons (such Persons, “Known Affiliates”) that are Affiliates of such Identified Institutions readily identifiable as such by the name of such Person, but excluding any Person that is a bona fide debt fund or investment vehicle that is engaged in making, purchasing, holding or otherwise investing in loans, bonds or similar extensions of credit or securities in the ordinary course of business; provided that, upon reasonable notice to the Administrative Agent after the Closing Date, the Parent shall be permitted to supplement in writing the list of Persons that are Disqualified Institutions with the name of any Person that is or becomes a competitor of the Parent or any of its Subsidiaries or a Known Affiliate of one of the competitors of the Parent or any of its Subsidiaries, which supplement shall be in the form of a list of names provided to the Administrative Agent and shall become effective upon delivery to the Administrative Agent, but which supplement shall not apply retroactively to disqualify any persons that have previously acquired an interest in respect of the Loans or Commitments hereunder.

 

“Disruption Event” means either or both of:

 

(a)            a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the credit facilities provided for herein (or otherwise in order for the transactions contemplated by the Credit Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

(b)            the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

(i)            from performing its payment obligations under the Credit Documents; or

 

(ii)            from communicating with other Parties in accordance with the terms of the Credit Documents,

 

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

“Domestic Subsidiary” means any Subsidiary that is organized and existing under the laws of the United States, any state thereof or the District of Columbia.

 

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

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“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (other than (i) a natural person (or holding company, investment vehicle or trust vehicle for, or owned and operated for the primary benefit of, a natural person) or (ii) a Disqualified Institution to the extent that the list of Disqualified Institutions has been provided to the Lenders at the Parent’s request); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include any Defaulting Lender, any Credit Party or any of the Credit Party’s Affiliates or Subsidiaries.

 

“Environment” means indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata, and natural resources such as wetlands, flora and fauna.

 

“Environmental Approval” means any Authorization required by Environmental Law.

 

“Environmental Law” means any law or regulation concerning:

 

(a)            the protection of health and safety;

 

(b)            the environment; or

 

(c)            any emission or substance which is capable of causing harm to any living organism or the environment.

 

“ERISA” means the Employee Retirement Income Security Act of 1974.

 

“ERISA Affiliate” means an entity which is under common control with any Credit Party within the meaning of Section 4001(a)(14) of ERISA, or is a member of a group which includes any Credit Party and which is treated as a single employer under subsection (b) or (c) of Section 414 of the Code.

 

“Erroneous Payment” has the meaning assigned thereto in Section 8.13(a).

 

“Erroneous Payment Deficiency Assignment” has the meaning assigned thereto in Section 8.13(d).

 

“Erroneous Payment Impacted Class” has the meaning assigned thereto in Section 8.13(d).

 

“Erroneous Payment Return Deficiency” has the meaning assigned thereto in Section 8.13(d).

 

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

“Event of Default” means any event or circumstance specified as such in Article VII.

 

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

 

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty is or becomes illegal.

 

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“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, (i) any Tax on such recipient’s net income or profits (or franchise Tax or branch profits Tax), in each case (a) imposed by a jurisdiction as a result of such recipient being organized or having its principal office or applicable lending office in such jurisdiction or (b) that is an Other Connection Tax, (ii) solely with respect to any Loans or advances to the Borrower, any U.S. federal withholding Tax imposed on amounts payable to a Lender (other than any Lender becoming a party hereto pursuant to a request under Section 2.23) with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (A) such Lender acquired such interest in the applicable Commitment or, if such Lender did not fund the applicable Loan pursuant to a prior Commitment, on the date such Lender acquired its interest in such Loan or (B) such Lender designates a new lending office, except in each case to the extent that amounts with respect to such Taxes were payable under Section 2.21 either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or such Lender immediately before it changed its lending office, (iii) any withholding Taxes attributable to a Lender’s failure to comply with Section 2.21(d), (iv) solely with respect to the Guaranty provided by any Guarantor that is a Dutch entity, (A) Taxes suffered, incurred or payable by any Lender with respect to the Dutch bank levy (bankenbelasting) as set out in the Dutch Bank Levy Act (Wet bankenbelasting) as in effect as of the Second Amendment Effective Date or any successor or amended Dutch bank levy that is no more onerous than the Dutch bank levy (bankenbelasting) as in effect as of the Second Amendment Effective Date, (B) Taxes, whether imposed by withholding or otherwise, assessed on a recipient under the laws of the Netherlands, if and to the extent such Taxes become payable as a result of such recipient having a substantial interest (aanmerkelijk belang) as defined in the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001) in a Guarantor that is a Dutch entity, and (C) with respect to any Lender becoming a Party after the date of this Agreement or an Eligible Assignee, Taxes imposed by the Netherlands pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) together with the related ordinances, regulations and guidelines, and (v) any Tax imposed under FATCA.

 

“Executive Order” means Executive Order No. 13224 on Terrorist Financing: Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism issued September 23, 2001, as amended by Executive Order 13268.

 

“Existing Credit Agreement” means the Credit Agreement dated as of September 27, 2019 (as amended, supplemented or otherwise modified from time to time), among the Parent, the Borrower, RKT, WRKCo, MWV, the other guarantors from time to time party thereto, the lenders from time to time party thereto, and CoBank, as administrative agent.

 

“Existing MWV Notes” means, collectively, the notes of MWV set forth on Schedule 1.1(a)(i).

 

“Existing Rabobank Securitization” means the receivables securitization transaction evidenced by:

 

(a)            the Eighth Amended and Restated Credit and Security Agreement, dated as of July 22, 2016, among WestRock Financial, Inc., as borrower, WestRock Converting Company, as servicer, Coöperative Rabobank U.A., New York Branch, as administrative agent for the lenders and as funding agent for the lenders and the co-agents, and the lenders and the co-agents from time to time party thereto; and

 

(b)            the Sixth Amended and Restated Receivables Sale Agreement, dated as of July 22, 2016, among the originators party thereto and WestRock Financial, Inc., as buyer.

 

“Extension of Credit” means, as to any Lender, the making of a Loan by such Lender.

 

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“Facilities Agreement” means that certain English law-governed Multicurrency Term and Revolving Facilities Agreement dated as of June 28, 2024 by and among the Obligors’ Agent (as defined therein), the Obligors (as defined therein) from time to time party thereto, the Finance Parties (as defined therein) from time to time party thereto and Wells Fargo Bank, National Association, as Agent (as defined therein), as amended, restated, modified or supplemented from time to time.

 

“Farm Credit Equities” has the meaning specified in Section 9.20(a).

 

“Farm Credit Equity Documents” has the meaning given such term in Section 9.20(a).

 

“Farm Credit Lender” means a federally chartered Farm Credit System lending institution organized under the Farm Credit Act of 1971.

 

“FATCA” means (a) Sections 1471 through 1474 of the Code as of the Closing Date (and any amended or successor version that is substantively comparable and not materially more onerous to comply with), and any current or future Treasury regulations or other official administrative interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in clause (a) above, or (c) any agreements entered into pursuant to current Section 1471(b)(1) of the Code (and any amended or successor version described above) and any intergovernmental agreements implementing the foregoing.

 

“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that if such rate is not so published for any day which is a Business Day, the Federal Funds Rate for such day shall be the average of the quotation for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent. Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

“Fee Letter” means, as applicable, (a) the Fee Letter dated as of June 7, 2022, between WestRock Company and CoBank and/or (b) the Mandate Letter dated as of May 24, 2024, between Smurfit Kappa Group, WestRock Company and CoBank, in each case, as amended, restated, modified or supplemented from time to time.

 

“Financial Indebtedness” means any indebtedness for or in respect of:

 

(a)            moneys borrowed and debit balances at financial institutions;

 

(b)            any acceptance credit or bill discounting facility;

 

(c)            any bond, note, debenture, loan stock or other similar instrument;

 

(d)            any preference share by its terms required to be redeemed prior to the Maturity Date;

 

(e)            any finance or capital lease or hire purchase, conditional sale or other arrangement required by the Accounting Principles to be capitalised for accounting purposes;

 

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(f)            receivables sold, pledged or discounted (otherwise than on a Non-Recourse basis or receivables sold, pledged or discounted pursuant to a Permitted Receivables Securitization);

 

(g)            the acquisition cost of any asset or service to the extent payable before or after its acquisition or possession by the party liable where the advance or deferred payment (as the case may be) would be required to be accounted for as a liability under the Accounting Principles and:

 

(i)            is arranged primarily as a method of raising finance or financing the acquisition or construction of that asset or the acquisition of that service (other than trade credit on customary commercial terms); or

 

(ii)           involves a period of more than six months before or after (as the case may be) the date of acquisition or supply;

 

(h)            any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and, except for non-payment of an amount, the then mark to market value of the derivative transaction will be used to calculate its amount) to the extent required to be accounted for as liabilities under the Accounting Principles;

 

(i)            any other transaction (including any forward sale or purchase agreement) which is required to be accounted for as a borrowing under the Accounting Principles;

 

(j)            any counter-indemnity obligation in respect of any guarantee, indemnity, bond, documentary credit or other instrument issued by a bank or financial institution; or

 

(k)            any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs (a) to (j) above,

 

but excluding any indebtedness owed by one member of the Group to another member of the Group.

 

“Financial Statements” means Annual Financial Statements and/or Interim Financial Statements.

 

“Floor” means a rate of interest equal to 0.00%.

 

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

 

“Governmental Authority” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

“Group” means the Parent and its Subsidiaries for the time being, other than any Securitization SPVs.

 

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“Guaranteed Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Credit Party and any Cash Management Bank, as amended, restated, amended and restated, modified, supplemented or extended from time to time.

 

“Guaranteed Hedging Agreement” means any Hedging Agreement between a Credit Party and a Hedging Agreement Provider, as amended, restated, amended and restated, modified, supplemented or extended from time to time.

 

“Guarantor” means each of (a) the Second Amendment Effective Date Guarantors, (b) the Additional Guarantors and (c) with respect to all liabilities and obligations owing from any other Credit Party or Subsidiaries to any Hedging Agreement Provider under any Guaranteed Hedging Agreement or to any Cash Management Bank under any Guaranteed Cash Management Agreement, the Borrower, in each case, unless it has ceased to be Guarantor in accordance with Section 6.12.

 

“Guaranty” means the guaranty of the Guarantors set forth in Article X.

 

“Hazardous Substances” means any substance, waste, chemical, pollutant or contaminant, material or compound in any form, including petroleum, crude oil or any fraction thereof, asbestos or asbestos containing materials, or polychlorinated biphenyls, that is regulated pursuant to any Environmental Law.

 

“Hedging Agreement Provider” means any Person that (i) to the extent it is not a Lender, has provided the Administrative Agent with a fully executed Designation Notice, substantially in the form of Exhibit D and (ii) enters into a Hedging Agreement with a Credit Party or any of its Subsidiaries that is permitted by Section 6.3 to the extent that (a) such Person is a Lender, the Administrative Agent, an Affiliate of a Lender or the Administrative Agent or any other Person that was a Lender or the Administrative Agent (or an Affiliate of a Lender or the Administrative Agent) at the time it entered into the Hedging Agreement but has ceased to be a Lender or the Administrative Agent (or whose Affiliate has ceased to be a Lender or the Administrative Agent) under the Credit Agreement or (b) such Person is a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent on the Closing Date and the Hedging Agreement to which such Person is a party was entered into on or prior to the Closing Date (even if such Person ceases to be a Lender or the Administrative Agent or such Person’s Affiliate ceased to be a Lender or the Administrative Agent); provided, in the case of a Guaranteed Hedging Agreement with a Person who is no longer a Lender, such Person shall be considered a Hedging Agreement Provider only through the stated maturity date (without extension or renewal or increase in notional amount) of such Guaranteed Hedging Agreement.

 

“Hedging Agreements” means, with respect to any Person, any agreement entered into to protect such Person against fluctuations in interest rates, or currency or raw materials values, including any interest rate swap, cap or collar agreement or similar arrangement between such Person and one or more counterparties, any foreign currency exchange agreement, currency protection agreements, commodity purchase or option agreements or other interest or exchange rate or commodity price hedging agreements, but excluding (i) any purchase, sale or option agreement relating to commodities used in the ordinary course of such Person’s business and (ii) any agreement existing as of the Closing Date or entered into after the Closing Date in accordance with the historical practices of the Group related to the fiber trading and fiber brokerage business of such Persons.

 

“Holding Company” means, in relation to a person, any other person in respect of which it is a Subsidiary.

 

“Identified Institutions” has the meaning set forth in the definition of “Disqualified Institutions”.

 

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“IFRS” means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

“Illegality Notice” has the meaning set forth in Section 2.18(b).

 

“Increased Amount Date” has the meaning assigned thereto in Section 2.26(a).

 

“Incremental Term Loan” has the meaning assigned thereto in Section 2.26(a)(i).

 

“Incremental Term Loan Commitment” has the meaning assigned thereto in Section 2.26(a)(i).

 

“Incremental Term Loan Lender” means a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.

 

“Incremental Term Loan Note” or “Incremental Term Loan Notes” means the promissory notes of the Borrower in favor of each of the Incremental Term Loan Lenders that requests a promissory note evidencing the portion of the Incremental Term Loans provided pursuant to Section 2.26, individually or collectively, as appropriate, as such promissory notes may be amended, modified, restated, supplemented, extended, renewed or replaced from time to time.

 

“Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

“Indemnitee” has the meaning set forth in Section 9.5(b).

 

“Information” has the meaning set forth in Section 9.14.

 

“Intercompany Debt” has the meaning set forth in Section 9.18.

 

“Interest Payment Date” means (a) as to any Base Rate Loan, (i) the last Business Day of each March, June, September and December and (ii) the applicable Maturity Date and(b) as to any Term SOFR Loan, (i) the last day of each Interest Period therefor and, in the case of any Interest Period of more than three (3) months’ duration, each day prior to the last day of such Interest Period that occurs at three-month intervals after the first day of such Interest Period; provided, that each such three-month interval payment day shall be the immediately succeeding Business Day if such day is not a Business Day, unless such day is not a Business Day but is a day of the relevant month after which no further Business Day occurs in such month, in which case such day shall be the immediately preceding Business Day and (ii) the applicable Maturity Date.

 

“Interest Period” means, as to any Term SOFR Loan, the period commencing on the date such Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date one (1), three (3) or six (6) months thereafter (provided that the initial Interest Period commencing on the Closing Date will end on July 28, 2022), in each case as selected by the Borrower in its Notice of Borrowing or Notice of Conversion/Extension and subject to availability; provided that:

 

(a)            the Interest Period shall commence on the date of advance of or conversion to any Term SOFR Loan and, in the case of immediately successive Interest Periods, each successive Interest Period shall commence on the date on which the immediately preceding Interest Period expires;

 

 22 

 

 

(b)            if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;

 

(c)            any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such Interest Period;

 

(d)            [reserved];

 

(e)            no Interest Period shall extend beyond the applicable Maturity Date;

 

(f)            there shall be no more than twelve (12) Interest Periods in effect at any time; and

 

(g)            no tenor that has been removed from this definition pursuant to Section 2.17(d) shall be available for specification in any Notice of Borrowing or Notice of Conversion/Extension.

 

“Investment Purpose” means the financing (or refinancing) of investments by any Credit Party (or any of their respective predecessors) in mills that are located in rural areas with populations of no more than 20,000 and that utilize waste and waste product (through the recycling of fiber) as inputs for their operations.

 

“Irish Credit Party” means any Credit Party incorporated under Irish law.

 

“Irish Companies Act” means the Companies Act 2014 of Ireland (as amended).

 

“IRS” means the Internal Revenue Service of the U.S. Department of the Treasury.

 

“Joinder Agreement” means a Joinder Agreement in substantially the form of Exhibit H, executed and delivered by each Person who becomes a Guarantor in accordance with the provisions of Section 6.11.

 

“Judgment Currency” has the meaning specified in Section 9.17.

 

“Known Affiliates” has the meaning set forth in the definition of “Disqualified Institutions”.

 

“Latest Maturing Loan” means the Term Loan incurred and outstanding under this Credit Agreement with the Latest Maturity Date.

 

“Latest Maturity Date” means the latest maturity date of any Loan incurred or outstanding under this Agreement at any given time after giving effect to any renewal, refinancing, refunding or extension of Loans incurred or outstanding pursuant to this Agreement.

 

“Lead Arranger” means CoBank in its capacity as the sole lead arranger with respect to this Agreement.

 

“Legal Opinion” means any legal opinion delivered to the Administrative Agent under Section 4(f) of the Second Amendment.

 

 23 

 

 

“Legal Reservations” means:

 

(a)            the principle that equitable remedies may be granted or refused at the discretion of a court, the principles of reasonableness and fairness, the limitation of enforcement by laws relating to bankruptcy, insolvency, reorganization, court schemes, moratoria, administration, examinership and other laws generally affecting the rights of creditors and similar principles or limitations under the laws of any applicable jurisdiction, regardless of whether considered in a proceeding in equity or at law;

 

(b)            the time barring of claims under applicable statutes of limitation, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty (other than Irish stamp duty) may be void and defences of set-off or counterclaim and similar principles or limitations under the laws of any applicable jurisdiction;

 

(c)            conflicts of laws principles relating to a contracting party’s substantial relationship with the subject jurisdiction, or whether there is a reasonable basis for the choice of law, and with exceptions for applicability of federal law, procedural matters and for matters which may be judged to violate local legal public policy;

 

(d)            local principles relating to finality of judgments, non-exclusivity and possibilities of appeal;

 

(e)            similar principles, rights and defences under the laws of any applicable jurisdiction to the extent that they are relevant and applicable; or

 

(f)            any other matters which are set out as qualifications or reservations (however described) as to matters of law of general application in the Legal Opinions.

 

“Lender Joinder Agreement” means a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent delivered in connection with Section 2.26.

 

“Lender Participation Notice” means a Lender Participation Notice substantially in the form of Exhibit K.

 

“Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, and their respective successors and assigns and any Incremental Term Loan Lender.

 

“Lending Office” means initially, the office of each Lender designated as such Lender’s Lending Office shown on Schedule 9.2; and thereafter, such other office of such Lender as such Lender may from time to time specify to the Administrative Agent and the Parent as the office of such Lender at which Loans of such Lender are to be made.

 

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind in the nature of a security interest (including any conditional sale or other title retention agreement and any lease in the nature thereof).

 

“Loan” or “Loans” means a Closing Date Term Loan or an Incremental Term Loan, as appropriate.

 

 24 

 

 

“Material Adverse Effect” means:

 

(a)            a material adverse effect on the business, operations or financial condition of the Group taken as a whole;

 

(b)            a material adverse effect on the ability of the Credit Parties (taken together) to perform any of their payment obligations under any of the Credit Documents; or

 

(c)            the guarantee given by any Guarantor not being effective or enforceable in accordance with its terms in a manner or to an extent which is materially prejudicial to the financial interests of the Lenders.

 

“Material Company” means, at any time:

 

(a)            a Guarantor; or

 

(b)            a Subsidiary of the Parent whose unconsolidated earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) represents 5% or more of Adjusted EBITDA reported in the latest Annual Financial Statements.

 

Compliance with the conditions set out in paragraph (b) above shall be determined by the Parent or the Credit Parties’ Agent on an annual basis by reference to latest Annual Financial Statements and the most recent annual financial results of that Subsidiary.

 

“Maturity Date” means (a) with respect to the Closing Date Term Loans, the date that is seven (7) years after the Closing Date and (b) with respect to any series of Incremental Term Loans, the date specified as the Maturity Date of such series of Incremental Term Loans in the applicable Lender Joinder Agreement.

 

“MNPI” has the meaning specified in Section 2.11(c)(i).

 

“Moody’s” means Moody’s Investors Service, Inc., or any successor or assignee of the business of such company in the business of rating securities.

 

“Most Favored Lender Provisions” has the meaning set forth in Section 9.21.

 

“Multiemployer Plan” means any employee benefit plan of the type defined in Section 3(37) of ERISA or described in Section 4001(a)(3) of ERISA and that is subject to ERISA, to which the Parent or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

 

“MWV” has the meaning set forth in the definition of “Second Amendment Effective Date Guarantor”.

 

“Non-Recourse” means, in relation to a Permitted Receivables Securitization, no recourse to the Group other than recourse that is customary for trade receivables facilities in the relevant jurisdiction.

 

“Note” or “Notes” means the Closing Date Term Loan Notes and/or the Incremental Term Loan Notes, collectively, separately or individually, as appropriate.

 

“Notice of Borrowing” means a request for the Closing Date Term Loan pursuant to Section 2.4. A Form of Notice of Borrowing is attached as Exhibit B.

 

 25 

 

 

“Notice of Conversion/Extension” means the written notice of (i) conversion of a Term SOFR Loan to a Base Rate Loan, (ii) conversion of a Base Rate Loan to a Term SOFR Loan or (iii) extension of a Term SOFR Loan, as appropriate, in each case substantially in the form of Exhibit C.

 

“OFAC” has the meaning set forth in Section 3.20.

 

“Offered Loans” has the meaning specified in Section 2.11(c)(iii).

 

“Other Connection Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, Taxes imposed as a result of any present or former connection between such recipient and the jurisdiction imposing such Tax (other than any connection arising solely from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to and/or enforced, any Credit Documents).

 

“Other Parties” has the meaning specified in Section 10.7(c).

 

“Other Taxes” means all present or future stamp or documentary Taxes or any other excise or property Taxes arising from any payment made hereunder or under any other Credit Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment of Loans (other than an assignment made pursuant to Section 2.23).

 

“Overnight Rate” means, for any day, with respect to any amount denominated in U.S. Dollars, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by the Administrative Agent to be customary in the place of disbursement or payment for the settlement of international banking transactions.

 

“Parent” means:

 

(a)            prior to the Second Amendment Effective Date, WestRock Company;

 

(b)            from the Second Amendment Effective Date, Smurfit WestRock; and

 

(c)            thereafter, from the date of any Permitted Holdco Reorganization, the relevant Replacement Parent (as defined in the definition of Permitted Holdco Reorganization).

 

“Participant” has the meaning set forth in Section 9.6(d).

 

“Participant Register” has the meaning set forth in Section 9.6(d).

 

“Party” means a party to this Agreement.

 

“Payment Recipient” has the meaning assigned thereto in Section 8.13(a).

 

“PBGC” means the United States Pension Benefit Guaranty Corporation.

 

“Periodic Term SOFR Determination Day” has the meaning specified in clause (a) of the definition of “Term SOFR.”

 

 26 

 

 

“Permitted Guarantee” means:

 

(a)            the endorsement of negotiable instruments in the ordinary course of trade;

 

(b)            any indemnity given in the ordinary course of the documentation of an acquisition transaction which indemnity is in a customary form and subject to customary limitations;

 

(c)            any guarantee comprising a netting or set-off arrangement entered into by a member of the Group in the ordinary course of its banking arrangements for the purposes of netting debit and credit balances of that member of the Group or of other members of the Group;

 

(d)            guarantees in existence on the Second Amendment Effective Date (or any replacement or renewals thereof or any guarantee given by the same members of the Group in respect of any permitted refinancing of the obligations guaranteed by such existing guarantee provided that any limit on the amount guaranteed is not subsequently increased (other than as a result of the capitalisation of interest));

 

(e)            customary indemnities to purchasers under sale agreements for any disposal that is permitted under Section 6.4;

 

(f)            guarantees, indemnities and performance or similar bonds guaranteeing performance by a member of the Group under any contract entered into in the ordinary course of business or lease of premises entered into in the ordinary course of business;

 

(g)            guarantees in respect of the Financial Indebtedness of members of the Group which are not Guarantors where such Financial Indebtedness is not prohibited by the terms of this Agreement;

 

(h)            guarantees given by a member of a Group in favor of another member of the Group;

 

(i)            any joint and several liability (hoofdelijke aansprakelijkheid), including any netting or set-off, as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes as a result of the existence of a VAT group under section 15 of the VAT Act or any analogous arrangement in any other jurisdiction, in each case, of which any Guarantor is or has been a member;

 

(j)            guarantees given to a landlord of a member of the Group in relation to lease agreements entered into in the ordinary course of business including:

 

(i)            a guarantee or performance bond given by a member of a Group for the obligations of another member of such Group under such agreements; or

 

(ii)           a guarantee given by a member of a Group in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or other instrument issued by a bank or financial institution (on normal commercial terms) to support the obligations of a member of such Group under such agreements;

 

(k)            guarantees given with the consent of the Administrative Agent (acting on the instructions of the Required Lenders);

 

(l)            any guarantees granted pursuant to or in connection with a Permitted Receivables Securitization; and

 

 27 

 

 

(m)            any guarantees given pursuant to section 357 of the Irish Companies Act.

 

“Permitted Holdco Reorganization” means:

 

(a)            the Combination; or

 

(b)            any other transaction pursuant to which the Parent at such time (the “Existing Parent”) becomes a direct or indirect wholly-owned subsidiary of another person, and such other person (the “Replacement Parent”) is designated by the Credit Parties’ Agent in writing to the Administrative Agent as such provided that:

 

(i)            the beneficial owners of the voting stock of the Replacement Parent immediately following that transaction are substantially the same as the holders of the voting stock of the Existing Parent immediately prior to that transaction and such that no Change in Control has occurred; and

 

(ii)            the Replacement Parent is (or becomes as soon as reasonably practicable and in any event within five Business Days of being designated as the Replacement Parent) a Guarantor.

 

A Permitted Holdco Reorganization may take place at any time and there shall be no limit to the number of Permitted Holdco Reorganizations during the term of this Agreement.

 

“Permitted Receivables Securitization” means a financing of receivables on a Non-Recourse basis by a member or members of the Group (including the Existing Rabobank Securitization).

 

“Permitted Reorganization” means:

 

(a)            an amalgamation, merger, demerger, consolidation, reconstruction, solvent winding up, solvent liquidation or other reorganization of a member of the Group where:

 

(i)            all of the business and assets of that member of the Group remain within the Group unless otherwise not prohibited by this Agreement;

 

(ii)           if that member of the Group was a Guarantor immediately prior to such reorganization being implemented, any surviving entity of, or any entity resulting from, any such reorganization is liable, subject to the Guarantee Principles (as defined in the Facilities Agreement in effect on the Second Amendment Effective Date), for the obligations of that Guarantor; and

 

 28 

 

 

(iii)          in the case of the Borrower, the surviving entity (x) is organized under the laws of the United States or any State thereof, (y) expressly assumes the Borrower’s obligations under this Agreement and the other Credit Documents to which the Borrower is a party pursuant to a supplement hereto or thereto, as applicable, in form and substance reasonably satisfactory to the Administrative Agent and (z) each Guarantor of the Credit Party Obligations of the Borrower shall have confirmed that its obligations hereunder in respect of such Credit Party Obligations shall apply to the such successor Borrower’s obligations under this Agreement (it being understood that, if the foregoing conditions in clauses (x) through (z) are satisfied, then the successor Borrower will automatically succeed to, and be substituted for, the Borrower under this Agreement); provided, however, that the Borrower shall have provided not less than five (5) Business Days’ notice of any merger, amalgamation or consolidation of the Borrower, and the existing Borrower or successor Borrower shall, promptly upon the request of the Administrative Agent or any Lender, supply any documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied (1) it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations and (2) any successor Borrower qualifies as a directly eligible borrower of the Farm Credit Lenders then party to this Agreement (or, if applicable, replacement Farm Credit Lenders who have agreed to purchase the outstanding Loans and Commitments of such existing Farm Credit Lenders in accordance with the assignment provisions of Section 9.6(b)); and

 

(b)            any other reorganization of one or more members of the Group approved by the Administrative Agent (acting on the instructions of the Required Lenders).

 

“Person” or “person” means any individual, partnership, joint venture, firm, corporation, limited liability company, unlimited liability company, designated activity company, association, trust or other enterprise (whether or not incorporated) or any Governmental Authority.

 

“Plan” means any employee benefit plan (as defined in Section 3(3) of ERISA) which is covered by ERISA and with respect to which any Credit Party or any ERISA Affiliate is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“Prime Rate” means a variable rate of interest per annum equal to the “U.S. prime rate” as reported on such day in the Money Rates Section of the Eastern Edition of The Wall Street Journal, or if the Eastern Edition of The Wall Street Journal is not published on such day, such rate as last published in the Eastern Edition of The Wall Street Journal.

 

“Prohibited Payment” means any bribe, rebate, payoff, influence payment, kickback or other payment or gift of money or anything of value (including meals or entertainment) to any officer, employee or ceremonial office holder of any government or instrumentality thereof, any political party or supra-national organisation (such as the United Nations), any political candidate, any royal family member or any other person who is connected or associated personally with any of the foregoing that is prohibited under any applicable law or regulation.

 

“Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

 

“Proposed Discounted Prepayment Amount” has the meaning specified in Section 2.11(c)(ii).

 

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

“Purchasing Borrower Party” means the Parent or any of its Subsidiaries.

 

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant Guaranty becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

 29 

 

 

“Rating” means the long term corporate credit rating of the Parent (or, as the case may be, any Affiliate of the Parent given such a rating) as was mostly announced by S&P or Moody’s, as applicable.

 

“Ratings Level” has the meaning set forth in the definition of “Applicable Percentage”.

 

“Regulation T, U or X” means Regulation T, U or X, respectively, of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

 

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees, managers, advisors, representatives and controlling persons of such Person and of such Person’s Affiliates.

 

“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection, migrating or leaching into the Environment, or into or from any building or facility.

 

“Relevant Governmental Body” means with respect to a Benchmark Replacement in respect of Credit Party Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, U.S. Dollars, the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto.

 

“Repeating Representations” means each of the representations set out in Section 3.1, Section 3.2, Section 3.3, Section 3.4, Section 3.5, Section 3.6, paragraph (a) of Section 3.9, Section 3.10, Section 3.12 to Section 3.14 (inclusive), Section 3.19 and Section 3.20.

 

“Reportable Event” means any of the events set out in Section 4043(c) of ERISA.

 

“Required Lenders” means, at any time, Lenders holding in the aggregate more than fifty percent (50%) of the outstanding Term Loans at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Lenders, Term Loans owing to such Defaulting Lender.

 

“Requirement of Law” means, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its material property.

 

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

“Responsible Officer” means, with respect to any Person, any of the Chief Executive Officer, Chief Financial Officer, the Treasurer, the Chief Accounting Officer, or the Controller of such Person (or, if no such Person is specified, of the Parent).

 

“Restricted Party” means a person that is listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on the Specially Designated Nationals and Blocked Persons list maintained by the US Department of the Treasury Office of Foreign Assets Control, the Consolidated List of Financial Sanctions Targets maintained by His Majesty’s Treasury, or any similar list maintained by, or public announcement of sanctions designation made by, any Sanctions Authority.

 

 30 

 

 

“RKT” has the meaning set forth in the definition of “Second Amendment Effective Date Guarantor”.

 

“S&P” means S&P Global Ratings, a segment of S&P Global Inc., and any successor to its rating agency business.

 

“Sanctions” means any Sanctions Laws and Anti-Money Laundering Laws.

 

“Sanctions Authorities” means:

 

(a)            the United States;

 

(b)            the United Nations;

 

(c)            the European Union;

 

(d)            the United Kingdom;

 

(e)            Canada; or

 

(f)            the respective governmental and official institutions and agencies of any of the foregoing, including, without limitation, the US Department of the Treasury Office of Foreign Assets Control, the United States Department of State, His Majesty’s Treasury and Global Affairs Canada.

 

“Sanctions Laws” means:

 

(a)            the Executive Order;

 

(b)            the International Emergency Economic Powers Act (50 USC. §§ 1701 et seq.);

 

(c)            the Trading with the Enemy Act (50 USC. App. §§ 1 et seq.);

 

(d)            the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 or the Iran Sanctions Act;

 

(e)            any other law or regulation promulgated from time to time and administered by the US Department of the Treasury Office of Foreign Assets Control, or the US State Department or the US Department of Commerce, or any similar law enacted in the United States after the Second Amendment Effective Date; or

 

(f)            any other trade, economic or financial sanctions laws, regulations, embargos, rules or restrictive measures administered, enacted or enforced by any Sanctions Authority including (without limitation) those relating to restrictive measures against specific countries or territories, including (without limitation) Donetsk, Luhansk, Crimea, Cuba, Iran, Syria, Sudan, Burma (Myanmar), North Korea and Libya.

 

“Second Amendment” means that certain Second Amendment to Amended and Restated Credit Agreement, dated as of July 1, 2024 but effective as of the Second Amendment Effective Date, by and among WRK Southeast, the Guarantors party thereto, the Lenders party thereto, the Voting Participants party thereto and the Administrative Agent.

 

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“Second Amendment Effective Date” means the “Effective Date” as defined in the Second Amendment.

 

“Second Amendment Effective Date Guarantor” means each of the following entities:

 

(a)            Smurfit WestRock US Holdings Corporation (f/k/a Latour Merger Sub Corporation), incorporated in Delaware with registered number 7665333;

 

(b)            Smurfit WestRock;

 

(c)            WestRock Company;

 

(d)            WRKCo Inc. (incorporated in Delaware, US with registered number 5688407) (“WRKCo”);

 

(e)            WestRock RKT, LLC (incorporated in Georgia, US with registered number J518706) (“RKT”);

 

(f)            WestRock MWV, LLC (incorporated in Delaware, US with registered number 3429632) (“MWV”);

 

(g)            Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland with company number 177324 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland;

 

(h)            Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland with company number 358039 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland;

 

(i)            Smurfit International B.V., (incorporated under the laws of the Netherlands and registered in the Trade Register of Chamber of Commerce under number 33149443);

 

(j)            Smurfit Kappa Group;

 

(k)            Smurfit Kappa Investments Limited; and

 

(l)            Smurfit Kappa Treasury Funding Designated Activity Company, a designated activity company incorporated under the laws of Ireland with company number 239631 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland.

 

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

 

“Securitization SPV” means:

 

(a)            WestRock Financial, Inc., incorporated in Delaware, US, with registered number 3309598; and

 

(b)            any other company, fund or other entity (other than the Parent) established for the purposes of a Permitted Receivables Securitization which the Credit Parties’ Agent designates as such by notice to the Administrative Agent at a time when (and the Credit Parties’ Agent confirms that) no Event of Default is continuing,

 

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in each case provided that, and for so long as, it has no assets or operations other than in connection with one or more Permitted Receivables Securitizations.

 

“Security” means a mortgage, charge, pledge, hypothec, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

 

“Smurfit Kappa Group” means Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland with company number 433527 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland.

 

“Smurfit WestRock” means Smurfit WestRock plc, a public limited company, incorporated under the laws of Ireland with company number 607515 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland.

 

“Smurfit Kappa Investments Limited” means a private limited company incorporated under the laws of Ireland with company number 380620 and having its registered office at Beech Hill, Clonskeagh, Dublin, Ireland.

 

“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

 

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

“Subsidiary” means, in relation to a company, corporation or partnership, another company, corporation or partnership (in each case other than a Securitization SPV):

 

(a)            which is controlled, directly or indirectly, by the first-mentioned company, corporation or partnership;

 

(b)            more than half the issued share capital of which is beneficially owned, directly or indirectly, by the first-mentioned company, corporation or partnership; or

 

(c)            which is a Subsidiary of another Subsidiary of the first-mentioned company, corporation or partnership,

 

and, for these purposes, a company, corporation or partnership shall be treated as being controlled by another if that other company, corporation or partnership is able to direct its affairs generally and/or to control the composition of a majority of its board of directors or equivalent body. Unless otherwise identified, “Subsidiary” or “Subsidiaries” means Subsidiaries of the Parent.

 

“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

 

“Takeover Code” means the City Code on Takeovers and Mergers issued by the Panel on Takeovers and Mergers.

 

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“Taxes” has the meaning set forth in Section 2.21(a).

 

“Tax Exempt Certificate” has the meaning set forth in Section 2.21(d).

 

“Term Loan Lenders” means, collectively, the Closing Date Term Loan Lenders and the Incremental Term Loan Lenders.

 

“Term Loan Note” means a Closing Date Term Loan Note and/or an Incremental Term Loan Note, as appropriate.

 

“Term Loans” means, collectively, Closing Date Term Loans and the Incremental Term Loans, and “Term Loan” means any of such Term Loans.

 

“Term SOFR” means,

 

(a)            for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and

 

(b)            for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Alternate Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Alternate Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Alternate Base Rate Term SOFR Determination Day.

 

“Term SOFR Adjustment” means a percentage equal to 0.10% per annum.

 

“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).

 

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“Term SOFR Loan” means any Loan that bears interest at a rate based on Adjusted Term SOFR other than pursuant to clause (c) of the definition of “Alternate Base Rate”.

 

“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.

 

“Trade Date” has the meaning set forth in Section 9.6(b)(i)(B).

 

“Transaction” means:

 

(a)            the Combination;

 

(b)            the Second Amendment;

 

(c)            the raising of Financial Indebtedness and repayment of existing Financial Indebtedness contemplated by the Facilities Agreement; and

 

(d)            any steps relating to the matters referred to in paragraphs (a) and (b) above.

 

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

 

“US” and “United States” means the United States of America, any state of it and/or the District of Columbia.

 

“USA Patriot Act” means the USA PATRIOT Act, Title III of Pub. L. 107-56, signed into law October 26, 2001.

 

“U.S. Dollars” and “$” means dollars in lawful currency of the United States of America.

 

“US GAAP” means generally accepted accounting principles in the US from time to time.

 

“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

 

“VAT” means:

 

(a)            any value added tax imposed by the VAT Act;

 

(b)            any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

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(c)            any other tax of a similar nature, whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.

 

“VAT Act” means the Value-Added Tax Consolidation Act 2010 of Ireland.

 

“Voting Participant” has the meaning set forth in Section 9.6(d).

 

“Voting Participant Notice” has the meaning set forth in Section 9.6(d).

 

“WestRock Company” means WestRock Company, incorporated in Delaware, US with registered number 6727858.

 

“WestRock Group” means WestRock Company and its Subsidiaries for the time being.

 

“Wholly-Owned Subsidiary” means, at any time, any Subsidiary of which all of the equity interests (except directors’ qualifying shares or shares aggregating less than 1% of the outstanding shares of such Subsidiary which are owned by individuals) and voting interests are owned by any one or more of the Parent and the Parent’s other Wholly-Owned Subsidiaries at such time.

 

“Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

“WRK Southeast” has the meaning set forth in the introductory paragraph hereof.

 

“WRKCo” has the meaning set forth in the definition of “Second Amendment Effective Date Guarantor”.

 

1.2            Computation of Time Periods.

 

All time references in this Credit Agreement and the other Credit Documents shall be to New York, New York time unless otherwise indicated. For purposes of computation of periods of time hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.”

 

1.3            Additional Construction Matters.

 

(a)            Unless a contrary indication appears, any reference in this Agreement to:

 

(i)            Adjusted EBITDA shall be a reference to Adjusted EBITDA as determined and/or reported in the relevant Financial Statements;

 

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(ii)           the Administrative Agent acting reasonably shall mean the Administrative Agent acting reasonably or acting on the instructions of the relevant Lenders (which themselves shall act reasonably in giving those instructions);

 

(iii)          assets includes present and future properties, revenues and rights of every description;

 

(iv)          jurisdiction of incorporation in the case of a Credit Party that is a partnership, an unlimited liability company, a public limited company, a private company limited by shares, a designated activity company or a limited liability company, will be deemed to be a reference to its jurisdiction of incorporation or its jurisdiction of formation and registration, as applicable;

 

(v)           indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

(vi)          a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law, but if not having the force of law being one with which it is the practice of the relevant person to comply of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organization); and

 

(vii)         cash includes, without limitation, cash in hand or cash on deposit (including cash on current accounts).

 

(b)            Section, Clause, Exhibit and Schedule headings are for ease of reference only.

 

(c)            Unless a contrary indication appears, a term used in any other Credit Document or in any notice given under or in connection with any Credit Document has the same meaning in that Credit Document or notice as in this Agreement.

 

(d)            A Default or an Event of Default is continuing if it has not been remedied or waived.

 

(e)            Any accounting or financial term shall, unless otherwise indicated, be construed in accordance with the Accounting Principles. For the purposes of calculating and/or determining Consolidated Total Assets, Adjusted EBITDA and/or unconsolidated earnings before interest, tax, depreciation and amortization for any period prior to any transaction (including the Combination) being consolidated for a full twelve month period and reported as such in the applicable Financial Statements, the Parent (or the Obligors’ Agent) may calculate Consolidated Total Assets, Adjusted EBITDA and/or unconsolidated earnings before interest, tax, depreciation and amortization as it may determine acting reasonably and in good faith.

 

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1.4            Terms Generally; Construction.

 

The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise or except as expressly provided herein, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), unless otherwise expressly stated to the contrary, (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

1.5            Rates.

 

The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark, or any component definition thereof or rates referred to in the definition thereof, or with respect to any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to Section 2.17, will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of a Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark, any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

 

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1.6            Personal Liability.

 

No personal liability shall attach to any director, officer or employee of any member of the Group or the WestRock Group for any representation or statement made by that member of the Group or the WestRock Group in any Credit Document or certificate signed by a director, officer or employee save in the case of fraud in which case liability (if any) will be determined in accordance with applicable law.

 

1.7            Dutch Terms.

 

In this Agreement, where it relates to a Dutch entity or the context so requires, a reference to:

 

(a)            a necessary action to authorize where applicable, includes without limitation:

 

(i)            any action required to comply with the Works Councils Act of The Netherlands (Wet op de ondernemingsraden); and

 

(ii)           obtaining an unconditional positive advice (advies) from the competent works council(s);

 

(b)            works council means each works council (ondernemingsraad) or central or group works council (centrale of groeps ondernemingsraad) having jurisdiction over that person;

 

(c)            constitutional documents means the articles of association (statuten) and deed of incorporation (akte van oprichting) and an up-to-date extract of registration of the Trade Register of the Dutch Chamber of Commerce;

 

(d)            The Netherlands means the European part of the Kingdom of the Netherlands and Dutch means in or of The Netherlands;

 

(e)            a security interest or security includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijke zekerheid);

 

(f)            a winding-up, administration or dissolution includes a bankruptcy (faillissement) or dissolution (ontbinding);

 

(g)           a moratorium includes surseance van betaling and a moratorium is declared or occurs includes surseance verleend;

 

(h)            any procedure or step taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Section 36 of the Tax Collection Act of The Netherlands (Invorderingswet 1990);

 

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(i)            an administrator includes a bewindvoerder or a beoogd bewindvoerder;

 

(j)            a liquidator includes a curator or a beoogd curator;

 

(k)           an attachment includes a beslag;

 

(l)            a composition includes an akkoordprocedure buiten faillissement;

 

(m)          an other similar officer includes a restructuring expert (herstructureringsdeskundige) or observer (observator); and

 

(n)            reorganisation includes statutory proceedings for the restructuring of debt (akkoordprocedure) under the Dutch Bankruptcy Act (Faillissementswet).

 

1.8            Irish Terms.

 

In this Agreement, where it relates to an Irish entity or the context so requires, a reference to:

 

(a)            examiner means an examiner or interim examiner appointed pursuant to Section 509 of the Irish Companies Act and examinership shall be construed accordingly;

 

(b)            inability to pay its debts shall be deemed to mean the relevant Guarantor incorporated, established or resident for the purposes of tax in Ireland under Irish law is unable to pay its debts within the meaning of section 509(3) or section 570 of the Irish Companies Act;

 

(c)            Ireland means the island of Ireland, exclusive of Northern Ireland; and

 

(d)            process advisor has the meaning given to that term in section 558A of the Irish Companies Act.

 

Article II

 

CREDIT FACILITY

 

2.1            Credit Parties’ Agent.

 

(a)            Each Credit Party (other than the Credit Parties’ Agent) by its execution of this Agreement or a Joinder Agreement irrevocably appoints the Credit Parties’ Agent (acting through one or more authorized signatories) to act on its behalf as its agent in relation to the Credit Documents and irrevocably authorizes:

 

(i)            the Credit Parties’ Agent on its behalf to supply all information concerning itself contemplated by this Agreement to the Lenders and the Administrative Agent and to give all notices and instructions, to execute on its behalf any Joinder Agreement and any guarantee or security confirmation, extension or ratification (subject to any applicable limitations on such guarantee or security referred to in Article X), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Credit Party notwithstanding that they may affect the Credit Party, without further reference to or the consent of that Credit Party; and

 

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(ii)           each Lender and the Administrative Agent to give any notice, demand or other communication to that Credit Party pursuant to the Credit Documents to the Credit Parties’ Agent,

 

and in each case the Credit Party shall be bound as though the Credit Party itself had given the notices and instructions or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication and each Lender and the Administrative Agent may rely on any action taken by the Credit Parties’ Agent on behalf of that Credit Party.

 

(b)            Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Credit Parties’ Agent or given to the Credit Parties’ Agent under any Credit Document on behalf of another Credit Party or in connection with any Credit Document (whether or not known to any other Credit Party and whether occurring before or after such other Credit Party became an Credit Party under any Credit Document) shall be binding for all purposes on that Credit Party as if that Credit Party had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Credit Parties’ Agent and any other Credit Party, those of the Credit Parties’ Agent shall prevail.

 

(c)            The Parent or the existing Credit Parties’ Agent may at any time, designate another Credit Party as Credit Parties’ Agent.

 

(d)            Unless otherwise provided in this Agreement, if the Credit Parties’ Agent ceases to be a Credit Party, the Parent will automatically become the Credit Parties’ Agent.

 

(e)            Each Credit Party acknowledges and agrees to paragraphs (c) and (d) above and agrees that, upon any operation of those paragraphs, it authorizes the replacement Credit Parties’ Agent as Credit Parties’ Agent in the terms set out in paragraphs (a) and (b) above.

 

2.2            [Reserved].

 

2.3            [Reserved].

 

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2.4            Closing Date Term Loan.

 

(a)            Closing Date Term Loan. Subject to the terms and conditions set forth herein, each Lender severally made, on September 27, 2019, its portion of a term loan in U.S. Dollars (the “Closing Date Term Loan”) in the aggregate principal amount of SIX HUNDRED MILLION U.S. DOLLARS ($600,000,000) (the “Closing Date Term Loan Committed Amount”) for the purposes hereinafter set forth. On and after the Closing Date, the Closing Date Term Loan may consist of Base Rate Loans or Term SOFR Loans, or a combination thereof, as the Borrower may request in its Notice of Borrowing. Amounts repaid or prepaid on the Closing Date Term Loan may not be reborrowed.

 

(b)            Repayment of Closing Date Term Loan. The principal amount of the Closing Date Term Loan shall be repaid on the Maturity Date.

 

(c)            Interest on the Closing Date Term Loan. Subject to the provisions of Sections 2.9 and 2.14, the Closing Date Term Loan shall bear interest on and after the Closing Date as follows:

 

(i)            Base Rate Loans. During such periods as the Closing Date Term Loan shall be comprised of Base Rate Loans, each such Base Rate Loan shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate plus the Applicable Percentage; and

 

(ii)            Term SOFR Loans. During such periods as the Closing Date Term Loan shall be comprised of Term SOFR Loans, each such Term SOFR Loan shall bear interest at a per annum rate equal to the sum of the Adjusted Term SOFR plus the Applicable Percentage.

 

Interest on the Closing Date Term Loan shall be payable in arrears on each Interest Payment Date.

 

(d)            Closing Date Term Loan Notes. The Borrower’s obligation to pay each Closing Date Term Loan Lender’s Closing Date Term Loan shall be evidenced, upon such Closing Date Term Loan Lender’s request, by a Closing Date Term Loan Note made payable to such Lender in substantially the form of Exhibit E.

 

2.5            [Reserved].

 

2.6            [Reserved].

 

2.7            [Reserved].

 

2.8            [Reserved].

 

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2.9            Default Rate.

 

If any principal of or interest on any Loan or any fee or other amount payable by any Credit Party hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, payable on demand, at a per annum rate two percent (2%) greater than the interest rate which would otherwise be applicable (or if no rate is applicable, whether in respect of interest, fees or other amounts, then two percent (2%) greater than the Alternate Base Rate plus the Applicable Percentage).

 

2.10          Conversion Options.

 

(a)            The Borrower may elect from time to time to convert Base Rate Loans to Term SOFR Loans and/or Term SOFR Loans to Base Rate Loans, by delivering a Notice of Conversion/Extension to the Administrative Agent at least three (3) Business Days’ prior to the proposed date of conversion. If the date upon which a Base Rate Loan is to be converted to a Term SOFR Loan or a Term SOFR Loan is to be converted to a Base Rate Loan is not a Business Day, then such conversion shall be made on the next succeeding Business Day and during the period from such last day of an Interest Period to such succeeding Business Day such Loan shall bear interest as if it were a Base Rate Loan or Term SOFR Loan, as applicable. All or any part of outstanding Base Rate Loans and Term SOFR Loans may be converted as provided herein; provided that (i) no Loan may be converted into a Term SOFR Loan when any Default or Event of Default has occurred and is continuing except with the consent of the Required Lenders, and (ii) partial conversions shall be in a minimum aggregate principal amount of the Borrowing Minimum or a whole multiple amount of the Borrowing Multiple in excess thereof.

 

(b)            Any Term SOFR Loan may be continued as such upon the expiration of an Interest Period with respect thereto by compliance by the Borrower with the notice provisions contained in Section 2.10(a); provided, that no Term SOFR Loan may be continued as such when any Default or Event of Default has occurred and is continuing, except with the consent of the Required Lenders, in which case such Term SOFR Loan shall be automatically converted to a Base Rate Loan at the end of the applicable Interest Period with respect thereto. If the Borrower shall fail to give timely notice of an election to continue a Term SOFR Loan, or the continuation of Term SOFR Loans is not permitted hereunder, such Term SOFR Loans shall be automatically converted to a Base Rate Loan at the end of the applicable Interest Period with respect thereto.

 

(c)            In connection with the use or administration of any Benchmark, the Administrative Agent will have the right, in consultation with the Parent, to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document. The Administrative Agent will promptly notify the Parent and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of any Benchmark.

 

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2.11          Prepayments.

 

(a)            Voluntary Prepayments. Term Loans may be repaid in whole or in part without premium or penalty; provided that (i) Term SOFR Loans may be repaid only upon three (3) Business Days’ prior written notice to the Administrative Agent, (ii) repayments of Term SOFR Loans must be accompanied by payment of any amounts owing under Section 2.20 and (iii) partial repayments of Loans shall be in minimum principal amount of the Borrowing Minimum, and in integral multiples of the Borrowing Multiple in excess thereof. To the extent that the Borrower elects to prepay the Closing Date Term Loan or, if applicable, any Incremental Term Loans, amounts prepaid under this Section 2.11(a) shall be applied to such Term Loans (to the remaining principal installments thereof, if any, as directed by the Borrower) first ratably to any Base Rate Loans and then to Term SOFR Loans in direct order of Interest Period maturities. All prepayments under this Section 2.11(a) shall be subject to Section 2.20, but otherwise without premium or penalty. Interest on the principal amount prepaid shall be payable on the next occurring Interest Payment Date that would have occurred had such Loan not been prepaid or, at the request of the Administrative Agent in the case of a prepayment under this clause (a) or clause (b) below, interest on the principal amount prepaid shall be payable on any date that a prepayment is made hereunder through the date of prepayment. Amounts prepaid on the Term Loans may not be reborrowed. Each notice delivered by the Borrower pursuant to this Section 2.11(a) shall be revocable by the Borrower (by notice to the Administrative Agent on or prior to the proposed prepayment date specified therein).

 

(b)            Change of Control. If there is a Change in Control: (A) the Credit Parties’ Agent shall promptly notify the Administrative Agent upon becoming aware of that event; (B) a Lender shall not be obliged to fund any Incremental Term Loan; and (C) if a Lender so requires and notifies the Administrative Agent within twenty (20) Business Days of the Credit Parties’ Agent notifying the Administrative Agent of the event, the Administrative Agent shall, by not less than sixty (60) days’ notice to the Credit Parties’ Agent, cancel any Commitment of that Lender and declare the participation of that Lender and of any such Affiliate in all outstanding Loans, together with accrued interest, and all other amounts accrued under the Credit Documents immediately due and payable. Any such notice will take effect in accordance with its terms. For the purposes of this Section 2.11(b), acting in concert has the meaning given to it in the Takeover Code.

 

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(c)            Discounted Prepayments.

 

(i)            Notwithstanding anything to the contrary in Section 2.11(a) or 2.15 (which provisions shall not be applicable to this Section 2.11(c)) or any other provision of this Agreement, any Purchasing Borrower Party shall have the right at any time and from time to time to prepay Term Loans of any Class to the Lenders at a discount to the par value of such Loans and on a non pro rata basis (each, a “Discounted Voluntary Prepayment”) pursuant to the procedures described in this Section 2.11(c) (it being understood that such prepayment may be made with either debt or cash); provided that (A) no Discounted Voluntary Prepayment shall be made from the proceeds of any revolving credit loan or swingline loan under the credit facilities under the Facilities Agreement, (B) any Discounted Voluntary Prepayment shall be offered to all Lenders with Term Loans on a pro rata basis and (C) such Purchasing Borrower Party shall deliver to the Administrative Agent a certificate stating that (1) no Default or Event of Default has occurred and is continuing or would result from the Discounted Voluntary Prepayment (after giving effect to any related waivers or amendments obtained in connection with such Discounted Voluntary Prepayment), (2) each of the conditions to such Discounted Voluntary Prepayment contained in this Section 2.11(c) has been satisfied and (3) except as previously disclosed in writing to the Administrative Agent and the Term Loan Lenders, such Purchasing Borrower Party does not have, as of the date of each Discounted Prepayment Option Notice and each Discounted Voluntary Prepayment Notice, any material non-public information (“MNPI”) with respect to the Parent or any of its Subsidiaries that has not been disclosed to the Lenders (other than Lenders that do not wish to receive MNPI with respect to the Parent, any of its Subsidiaries or Affiliates) prior to such time that could reasonably be expected to have a material effect upon, or otherwise be material to, a Term Loan Lender’s decision to offer Term Loans to the Purchasing Borrower Party to be repaid, except to the extent that such Term Loan Lender has entered into a customary “big boy” letter with the Parent.

 

(ii)           To the extent a Purchasing Borrower Party seeks to make a Discounted Voluntary Prepayment, such Purchasing Borrower Party will provide a Discounted Prepayment Option Notice that such Purchasing Borrower Party desires to prepay Term Loans of the Class specified therein in an aggregate principal amount specified therein by the Purchasing Borrower Party (each, a “Proposed Discounted Prepayment Amount”), in each case at a discount to the par value of such Term Loans as specified below. The Proposed Discounted Prepayment Amount of Term Loans shall not be less than $5,000,000. The Discounted Prepayment Option Notice shall further specify with respect to the proposed Discounted Voluntary Prepayment: (A) the Proposed Discounted Prepayment Amount of Term Loans, (B) a discount range (which may be a single percentage) selected by the Purchasing Borrower Party with respect to such proposed Discounted Voluntary Prepayment (representing the percentage of par of the principal amount of Term Loans to be prepaid) (the “Discount Range”), and (C) the date by which Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Prepayment which shall be at least five Business Days following the date of the Discounted Prepayment Option Notice (the “Acceptance Date”).

 

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(iii)          Upon receipt of a Discounted Prepayment Option Notice in accordance with Section 2.11(c)(ii), the Administrative Agent shall promptly notify each Term Loan Lender of the applicable Class thereof. On or prior to the Acceptance Date, each such Lender may specify by Lender Participation Notice to the Administrative Agent (A) a minimum price (the “Acceptable Price”) within the Discount Range (for example, 80% of the par value of the Loans to be prepaid) and (B) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of Term Loans with respect to which such Lender is willing to permit a Discounted Voluntary Prepayment at the Acceptable Price (“Offered Loans”). Based on the Acceptable Prices and principal amounts of Term Loans specified by the Lenders in the applicable Lender Participation Notice, the Administrative Agent, in consultation with the Purchasing Borrower Party, shall determine the applicable discount for Term Loans (the “Applicable Discount”), which Applicable Discount shall be (A) the percentage specified by the Purchasing Borrower Party if the Purchasing Borrower Party has selected a single percentage pursuant to Section 2.11(c)(ii) for the Discounted Voluntary Prepayment or (B) otherwise, the lowest Acceptable Price at which the Purchasing Borrower Party can pay the Proposed Discounted Prepayment Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the lowest Acceptable Price); provided, however, that in the event that such Proposed Discounted Prepayment Amount cannot be repaid in full at any Acceptable Price, the Applicable Discount shall be the highest Acceptable Price specified by the Lenders that is within the Discount Range. The Applicable Discount shall be applicable for all Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans. Any Lender with outstanding Term Loans whose Lender Participation Notice is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of any of its Term Loans at any discount to their par value within the Applicable Discount. For the avoidance of doubt, any Term Loans redeemed by the Parent pursuant to a Discounted Voluntary Prepayment shall immediately cease to be outstanding.

 

(iv)          The Purchasing Borrower Party shall make a Discounted Voluntary Prepayment by prepaying those Term Loans (or the respective portions thereof) offered by the Lenders (“Qualifying Lenders”) that specify an Acceptable Price that is equal to or lower than the Applicable Discount (“Qualifying Loans”) at the Applicable Discount; provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Purchasing Borrower Party shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Purchasing Borrower Party shall prepay all Qualifying Loans.

 

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(v)           Each Discounted Voluntary Prepayment shall be made within four Business Days of the Acceptance Date (or such other date as the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty (but subject to Section 2.19), upon irrevocable notice in the form of a Discounted Voluntary Prepayment Notice, delivered to the Administrative Agent no later than 1:00 p.m. (New York City time), three Business Days prior to the date of such Discounted Voluntary Prepayment, which notice shall specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount determined by the Administrative Agent. Upon receipt of any Discounted Voluntary Prepayment Notice, the Administrative Agent shall promptly notify each relevant Lender thereof. If any Discounted Voluntary Prepayment Notice is given, the amount specified in such notice shall be due and payable to the applicable Lenders, subject to the Applicable Discount on the applicable Loans, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the amount prepaid.

 

(vi)          To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to reasonable procedures (including as to timing, rounding and calculation of Applicable Discount in accordance with Section 2.11(c)(iii) above) established by the Administrative Agent in consultation with the Parent.

 

(vii)         Prior to the delivery of a Discounted Voluntary Prepayment Notice, upon written notice to the Administrative Agent, the Purchasing Borrower Party may withdraw its offer to make a Discounted Voluntary Prepayment pursuant to any Discounted Prepayment Option Notice.

 

(viii)        The aggregate principal amount of the Term Loans of the applicable Class outstanding shall be deemed reduced by the full par value of the aggregate principal amount of the Term Loans of such Class prepaid on the date of any such Discounted Voluntary Prepayment.

 

(ix)           Each prepayment of the outstanding Term Loans of any Class pursuant to this Section 2.11(c) shall be applied at par to the remaining principal repayment installments of the Term Loans of such Class, if any, pro rata among such installments for the respective class.

 

(x)            For the avoidance of doubt, it is within each Lender’s sole and absolute discretion whether to accept a Discounted Voluntary Prepayment.

 

2.12            [Reserved].

 

2.13            Fees.

 

(a)            [Reserved].

 

(b)            The Credit Parties agree to pay to the Administrative Agent the annual administrative agent fee as described in the Fee Letter.

 

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2.14            Computation of Interest and Fees.

 

(a)            Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable to such Loan. Interest payable hereunder with respect to Base Rate Loans accruing interest at the Prime Rate shall be calculated on the basis of a year of 365 days (or 366 days, as applicable) for the actual days elapsed. All other fees, interest and all other amounts payable hereunder shall be calculated on the basis of a 360 day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of each determination of Term SOFR on the Business Day of the determination thereof. Any change in the interest rate on a Loan resulting from a change in the Alternate Base Rate shall become effective as of the opening of business on the day on which such change in the Alternate Base Rate shall become effective. The Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of the effective date and the amount of each such change.

 

(b)            Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Credit Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the computations used by the Administrative Agent in determining any interest rate.

 

(c)            It is the intent of the Administrative Agent, the Lenders and the Credit Parties to conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between or among the Administrative Agent, the Lenders and the Credit Parties are hereby limited by the provisions of this subsection which shall override and control all such agreements, whether now existing or hereafter arising and whether written or oral. In no way, nor in any event or contingency (including prepayment or acceleration of the maturity of any Credit Party Obligation), shall the interest taken, reserved, contracted for, charged, or received under this Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount permissible under applicable law. If, from any possible construction of any of the Credit Documents or any other document, interest would otherwise be payable in excess of the maximum nonusurious amount, any such construction shall be subject to the provisions of this subsection and such interest shall be automatically reduced to the maximum nonusurious amount permitted under applicable law, without the necessity of execution of any amendment or new document. If the Administrative Agent or any Lender shall ever receive anything of value which is characterized as interest on the Loans under applicable law and which would, apart from this provision, be in excess of the maximum nonusurious amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Loans and not to the payment of interest, or refunded to the Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal amount of the Loans. The right to demand payment of the Loans or any other Financial Indebtedness evidenced by any of the Credit Documents does not include the right to receive any interest which has not otherwise accrued on the date of such demand, and the Lenders do not intend to charge or receive any unearned interest in the event of such demand. All interest paid or agreed to be paid to the Lenders with respect to the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term (including any renewal or extension) of the Loans so that the amount of interest on account of such Indebtedness does not exceed the maximum nonusurious amount permitted by applicable law.

 

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2.15            Pro Rata Treatment and Payments.

 

(a)            Pro Rata Distribution of Payments. Each payment on account of an amount due from the Borrower hereunder or under any other Credit Document shall be made by the Borrower to the Administrative Agent for the pro rata account of the Lenders entitled to receive such payment as provided herein in the currency in which such amount is denominated and in such funds as are customary at the place and time of payment for the settlement of international payments in such currency. Upon request, the Administrative Agent will give the Borrower a statement showing the computation used in calculating such amount, which statement shall be presumptively correct in the absence of manifest error. The obligation of the Borrower to make each payment on account of such amount in the currency in which such amount is denominated shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment, which is expressed in or converted into any other currency, except to the extent such tender or recovery shall result in the actual receipt by the Administrative Agent of the full amount in the appropriate currency payable hereunder.

 

(b)            Application of Payments Prior to Exercise of Remedies. Unless otherwise specified in this Credit Agreement, each payment under this Credit Agreement or any Note shall be applied (i) first, to interest then due and owing hereunder and under the Notes of the Borrower and (ii) second, to principal then due and owing hereunder and under the Notes of the Borrower. Each payment (other than voluntary repayments) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective amounts due and owing hereunder. Each voluntary repayment on account of principal of the Loans shall be applied in accordance with Section 2.11(a). All payments (including prepayments) to be made by the Credit Parties on account of principal, interest and fees shall be made without defense, set-off or counterclaim and shall be made to the Administrative Agent for the account of the Lenders (except as provided in Section 2.25(b)) at the Administrative Agent’s office specified in Section 9.2 and shall be made in U.S. Dollars not later than 12:00 p.m. on the date when due. The Administrative Agent shall distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Term SOFR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.

 

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(c)            Allocation of Payments After Exercise of Remedies. Notwithstanding any other provision of this Credit Agreement to the contrary, after the exercise of remedies (other than the invocation of default interest pursuant to Section 2.9) by the Administrative Agent pursuant to Section 7.2 (or after the Commitments shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts under the Credit Documents shall automatically become due and payable in accordance with the terms of such Section), all amounts collected or received by the Administrative Agent or any Lender on account of the Credit Party Obligations or any other amounts outstanding under any of the Credit Documents shall be paid over or delivered as follows:

 

FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the Administrative Agent in connection with enforcing the rights of the Lenders under the Credit Documents;

 

SECOND, to payment of any fees owed to the Administrative Agent;

 

THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of each of the Lenders in connection with enforcing its rights under the Credit Documents or otherwise with respect to the Credit Party Obligations owing to such Lender;

 

FOURTH, to the payment of all of the Credit Party Obligations consisting of accrued fees and interest, and including, with respect to any Guaranteed Hedging Agreement and/or any Guaranteed Cash Management Agreement, any fees, premiums and scheduled periodic payments due under such Guaranteed Hedging Agreement and/or Guaranteed Cash Management Agreement and any interest accrued thereon;

 

FIFTH, to the payment of the outstanding principal amount of the Credit Party Obligations, and including with respect to any Guaranteed Hedging Agreement and/or any Guaranteed Cash Management Agreement, any breakage, termination or other payments due under such Guaranteed Hedging Agreement and any interest accrued thereon;

 

SIXTH, to all other Credit Party Obligations and other obligations which shall have become due and payable under the Credit Documents or otherwise and not repaid pursuant to clauses “FIRST” through “FIFTH” above; and

 

SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.

 

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In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category and (ii) each of the Lenders, Cash Management Banks and/or Hedging Agreement Providers shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans held by such Lender or the outstanding obligations payable to such Hedging Agreement Provider and/or Cash Management Bank bears to the aggregate then outstanding Loans and obligations payable under all Hedging Agreements with a Hedging Agreement Provider and/or Cash Management Agreements with a Cash Management Bank) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above.

 

The Administrative Agent shall not be deemed to have notice of the existence of, notice of any Credit Party Obligations owed to, or be responsible for any distribution to, any Hedging Agreement Provider and/or Cash Management Bank for any purposes of this Agreement unless such amounts have been notified in writing to the Administrative Agent by the Parent and, as applicable, such Hedging Agreement Provider or Cash Management Bank.

 

(d)            Defaulting Lenders. Notwithstanding the foregoing clauses (a), (b) and (c), if there exists a Defaulting Lender, each payment by the Credit Parties to such Defaulting Lender hereunder shall be applied in accordance with Section 2.25(b).

 

2.16            Non-Receipt of Funds by the Administrative Agent.

 

(a)            Funding by Lenders; Presumption by the Administrative Agent. Unless the Administrative Agent shall have been notified in writing by a Lender prior to the date a Loan is to be made by such Lender (which notice shall be effective upon receipt) that such Lender does not intend to make the proceeds of such Loan available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such proceeds available to the Administrative Agent on such date, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent, the Administrative Agent shall be able to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent will promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from the Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent at a per annum rate equal to (i) from the Borrower at the applicable rate for the applicable borrowing pursuant to the Notice of Borrowing and (ii) from a Lender at the Federal Funds Rate.

 

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(b)            Payments by Borrower; Presumptions by Agent. Unless the Administrative Agent shall have been notified in writing by the Borrower, prior to the date on which any payment is due from it hereunder (which notice shall be effective upon receipt) that the Borrower does not intend to make such payment, the Administrative Agent may assume that the Borrower has made such payment when due, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to each Lender on such payment date an amount equal to the portion of such assumed payment to which such Lender is entitled hereunder, and if the Borrower has not in fact made such payment to the Administrative Agent, such Lender shall, on demand, repay to the Administrative Agent the amount made available to such Lender. If such amount is repaid to the Administrative Agent on a date after the date such amount was made available to such Lender, such Lender shall pay to the Administrative Agent on demand interest on such amount in respect of each day from the date such amount was made available by the Administrative Agent at a per annum rate equal to, if repaid to the Administrative Agent within two (2) days from the date such amount was made available by the Administrative Agent, the Federal Funds Rate, and thereafter at a rate equal to the Alternate Base Rate.

 

(c)            Evidence of Amounts Owed. A certificate of the Administrative Agent submitted to the Borrower or any Lender with respect to any amount owing under this Section 2.16 shall be conclusive in the absence of manifest error.

 

(d)            Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Extension of Credit set forth in Article IV are not satisfied or waived in accordance with the terms thereof, the Administrative Agent shall forthwith return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(e)            Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 9.5(c) are several and not joint. The failure of any Lender to make any Loan or to make any such payment under Section 9.5(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or to make its payment under Section 9.5(c).

 

(f)            Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

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2.17            Benchmark Replacement Setting.

 

(a)            Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Credit Document, upon the occurrence of a Benchmark Transition Event with respect to any Benchmark, the Administrative Agent and the Parent may amend this Agreement to replace such Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement”, without any further action or consent of any other party to this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement”, at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Parent so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.17(a) will occur prior to the applicable Benchmark Transition Start Date.

 

(b)            Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement (or the Term SOFR Reference Rate), the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document.

 

(c)            Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Parent and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Parent of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.17(d). Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.17, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.17.

 

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(d)            Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if any then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

 

(e)            Benchmark Unavailability Period. Upon the Parent receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of, Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, in the case of any request for any affected Term SOFR Loans, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans in the amount specified therein and (ii) any outstanding affected Term SOFR Loans, if applicable, will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section ‎2.20. During a Benchmark Unavailability Period with respect to any Benchmark or at any time that a tenor for any then-current Benchmark is not an Available Tenor, the component of the Alternate Base Rate based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate.

 

2.18            Illegality.

 

(a)If, in any applicable jurisdiction, the Administrative Agent or any Lender determines that any applicable law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for the Administrative Agent or any Lender to (i) perform any of its obligations hereunder or under any other Credit Document, (ii) fund or maintain its participation in any Loan or (iii) issue, make, maintain, fund or charge interest or fees with respect to any Extension of Credit to any Credit Party that is a Foreign Subsidiary, then such Person shall promptly notify the Administrative Agent, and, upon the Administrative Agent notifying the Parent, and until such notice by such Person is revoked, any obligation of such Person to issue, make, maintain, fund or charge interest or fees with respect to any such Extension of Credit shall be suspended, and to the extent required by applicable law, cancelled. Upon receipt of such notice, the Credit Parties shall (A) repay that Person’s participation in the Loans or other applicable Credit Party Obligations on last day of the Interest Period for any Term SOFR Loan, first occurring after the Administrative Agent has notified the Parent or, if earlier, the date specified by such Person in the notice delivered to the Administrative Agent (being no earlier than the last day of any applicable grace period permitted by applicable law) and (B) take all reasonable actions requested by such Person to mitigate or avoid such illegality.

 

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(b)If, after the date hereof, the introduction of, or any change in, any applicable law or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any of the Lenders (or any of their respective lending offices) with any request or directive (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful or impossible for any of the Lenders (or any of their respective lending offices) to honor its obligations hereunder to make or maintain any Term SOFR Loan, or to determine or charge interest based upon the Term SOFR Reference Rate, Term SOFR or Adjusted Term SOFR, such Lender shall promptly give notice thereof to the Administrative Agent and the Administrative Agent shall promptly give notice to the Parent and the other Lenders (an “Illegality Notice”). Thereafter, until each affected Lender notifies the Administrative Agent and the Administrative Agent notifies the Parent that the circumstances giving rise to such determination no longer exist, (i) any obligation of the Lenders to make Term SOFR Loans, and any right of the Borrower to convert any Loan to a Term SOFR Loan or continue any Loan as a Term SOFR Loan, shall be suspended and (ii) if necessary to avoid such illegality, the Administrative Agent shall compute the Alternate Base Rate without reference to clause (c) of the definition of “Alternate Base Rate”. Upon receipt of an Illegality Notice, the Borrower shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term SOFR Loans to Base Rate Loans (if necessary to avoid such illegality, the Administrative Agent shall compute the Alternate Base Rate without reference to clause (c) of the definition of “Alternate Base Rate”) on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such Term SOFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such Term SOFR Loans to such day. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.20.

 

2.19            Requirements of Law.

 

(a)            If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the Closing Date:

 

(i)            shall subject any Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan (other than a Base Rate Loan) made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for any Indemnified Taxes indemnifiable under Section 2.21 or any Excluded Taxes);

 

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(ii)            shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of any Lender which is not otherwise included in the determination of the Benchmark hereunder; or

 

(iii)            shall impose on such Lender any other condition;

 

and the result of any of the foregoing is to increase the cost to such Lender of making or maintaining Loans (other than Base Rate Loans), or to reduce any amount receivable hereunder or under any Note, then, in any such case, the Borrower shall promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such additional cost or reduced amount receivable which such Lender reasonably deems to be material as determined by such Lender. A certificate as to any additional amounts payable pursuant to this Section submitted by such Lender, through the Administrative Agent to the Borrower shall be conclusive in the absence of manifest error. Each Lender agrees to use reasonable efforts (including reasonable efforts to change its Lending Office) to avoid or to minimize any amounts which might otherwise be payable pursuant to this subsection (a); provided, however, that such efforts shall not cause the imposition on such Lender of any additional costs or legal or regulatory burdens deemed by such Lender in its sole discretion to be material. Notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and all requests, rules, guidelines or directives thereunder or issued in connection therewith as well as (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a change in “Requirement of Law,” regardless of the date enacted, adopted or issued.

 

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(b)            If any Lender shall have reasonably determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or liquidity or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) from any central bank or Governmental Authority made subsequent to the Closing Date does or shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity) by an amount reasonably deemed by such Lender in its sole discretion to be material, then from time to time, within fifteen (15) days after demand by such Lender, the Borrower shall pay to such Lender such additional amount as shall be certified by such Lender as being required to compensate it for such reduction (but, in the case of outstanding Base Rate Loans, without duplication of any amounts already recovered by a Lender by reason of an adjustment in the Alternate Base Rate). Such a certificate as to any additional amounts payable under this Section submitted by a Lender (which certificate shall include a description of the basis for the computation), through the Administrative Agent to the Borrower shall be conclusive absent manifest error.

 

(c)            Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.19 shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section 2.19 for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender, as the case may be, notifies the Borrower of the Requirement of Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Requirement of Law giving rise to such increased costs or reductions is retroactive, then the six (6) month period referred to above shall be extended to include the period of retroactive effect thereof).

 

(d)            The agreements in this Section 2.19 shall survive the termination of this Credit Agreement and payment of the Notes and all other amounts payable hereunder.

 

2.20            Indemnity.

 

The Borrower hereby indemnifies each of the Lenders against any loss, cost or expense (including any loss, cost or expense arising from the liquidation or reemployment of funds or from any fees payable) which may arise, be attributable to or result due to or as a consequence of (a) any failure by the Borrower to make any payment when due of any amount due hereunder in connection with a Term SOFR Loan, (b) any failure of the Borrower to borrow or continue a Term SOFR Loan or convert to a Term SOFR Loan on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Extension, (c) any failure of the Borrower to prepay any Term SOFR Loan on a date specified therefor in any notice of prepayment (regardless of whether any such notice of prepayment may be revoked under Section 2.11(a) and is revoked in accordance therewith), (d) any payment, prepayment or conversion of any Term SOFR Loan on a date other than the last day of the Interest Period therefor (including as a result of an Event of Default) or (e) the assignment of Term SOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.23. A certificate of such Lender setting forth the basis for determining such amount or amounts necessary to compensate such Lender shall be forwarded to the Borrower through the Administrative Agent and shall be conclusively presumed to be correct save for manifest error. All of the obligations of the Credit Parties under this Section 2.20 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

 

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2.21            Taxes.

 

(a)            All payments made by any Credit Party hereunder or under any Credit Document will be, except as required by applicable law, made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any Governmental Authority or by any political subdivision or taxing authority thereof or therein, including all interest, penalties and additions to tax with respect thereto (“Taxes”). If any Credit Party, the Administrative Agent or any other applicable withholding agent is required by law to make any deduction or withholding on account of any Taxes from or in respect of any sum paid or payable by any Credit Party to any Lender or the Administrative Agent under any of the Credit Documents, then the applicable withholding agent shall make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, the sum payable by the applicable Credit Party to such Lender or the Administrative Agent shall be increased by such Credit Party to the extent necessary to ensure that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.21) each Lender (or, in the case of a payment made to the Administrative Agent for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no such deduction or withholding been made. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.21, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(b)            In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(c)            The Credit Parties shall, jointly and severally, indemnify and hold harmless each Lender and the Administrative Agent, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes (including any Indemnified Taxes imposed on or attributable to amounts payable under this Section 2.21) paid or payable by such Lender or the Administrative Agent, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of another Lender, shall be conclusive absent manifest error.

 

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(d)            Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to any payments made under any Credit Document shall deliver to the Parent and the Administrative Agent, at the time or times reasonably requested by the Parent or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Parent or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Parent or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Parent or the Administrative Agent as will enable the Parent or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than any documentation relating to U.S. federal withholding Taxes) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender hereby authorizes the Administrative Agent to deliver to the Parent and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant to this Section 2.21(d).

 

Without limiting the generality of the foregoing,

 

(1)            Each Lender that is a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the Parent and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Parent or the Administrative Agent), two executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding.

 

(2)            Each Lender that is not a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) agrees to deliver to the Parent and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Parent or the Administrative Agent), whichever of the following is applicable:

 

(i)two executed originals of IRS Form W-8BEN or W-8BEN-E (or successor forms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party,

 

(ii)two executed originals of IRS Form W-8ECI (or successor forms),

 

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(iii)in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code, (x) two executed originals of a certificate substantially in the form of Exhibit F (any such certificate, a “Tax Exempt Certificate”) and (y) two executed originals of IRS Form W-8BEN or W-8BEN-E (or successor forms),

 

(iv)to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), IRS Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, Tax Exempt Certificate, Form W-9, Form W-8IMY or any other required information (or any successor forms) from each beneficial owner that would be required under this Section 2.21(d) if such beneficial owner were a Lender, as applicable (provided that if the Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners are claiming the portfolio interest exemption, the Tax Exempt Certificate may be provided by such Lender on behalf of such direct or indirect partners(s)), or

 

(v)two executed originals of any other form prescribed by applicable U.S. federal income Tax laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, United States federal withholding Tax on any payments to such Lender under the Credit Documents.

 

(3)            If a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Parent and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Parent or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Parent or the Administrative Agent as may be necessary for the Parent and the Administrative Agent to comply with their FATCA obligations, to determine whether such Lender has or has not complied with such Lender’s FATCA obligations and to determine the amount, if any, to deduct and withhold from such payment.

 

In addition, each Lender agrees that, whenever a lapse in time or change in circumstances renders any such documentation (including any specific documentation required in this Section 2.21(d)) obsolete, expired or inaccurate in any respect, it shall deliver promptly to the Parent and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Parent or the Administrative Agent) or promptly notify the Parent and the Administrative Agent in writing of its legal ineligibility to do so.

 

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Notwithstanding anything to the contrary in this Section 2.21(d), no Lender shall be required to deliver any documentation that it is not legally eligible to deliver.

 

(e)            Each Lender that requests reimbursement for amounts owing pursuant to this Section 2.21 agrees to use reasonable efforts (including reasonable efforts to change its lending office) to avoid or to minimize any amounts which might otherwise be payable pursuant to this Section 2.21; provided, however, that such efforts shall not cause the imposition on such Lender of any additional costs or legal or regulatory burdens deemed by such Lender in its sole discretion to be material.

 

(f)            If the Administrative Agent or any Lender determines, in its good faith discretion, that it has received a refund of any Indemnified Taxes as to which it has been indemnified by a Credit Party or with respect to which a Credit Party has paid additional amounts pursuant to this Section 2.21, it shall promptly pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Credit Party under this Section 2.21 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes imposed with respect to such refund) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the applicable Credit Party, upon the request of the Administrative Agent or such Lender, shall repay the amount paid over to the Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This subsection shall not be construed to interfere with the right of a Lender or the Administrative Agent to arrange its Tax affairs in whatever manner it thinks fit nor oblige any Lender or the Administrative Agent to disclose any information relating to its Tax affairs or any computations in respect thereof or require any Lender or the Administrative Agent to do anything that would prejudice its ability to benefit from any other refunds, credits, reliefs, remissions or repayments to which it may be entitled. Notwithstanding anything to the contrary, in no event will any Lender be required to pay any amount to a Credit Party the payment of which would place such Lender in a less favorable net after-tax position than it would have been in if the additional amounts or indemnification payments giving rise to such refund of any Indemnified Taxes had never been paid.

 

(g)            The agreements in this Section 2.21 shall survive the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under this Credit Agreement and any other Credit Document, the payment of the Notes and all other amounts payable hereunder, the resignation of the Administrative Agent and any assignment of rights by, or replacement of, any Lender.

 

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2.22            [Reserved].

 

2.23            Replacement of Lenders.

 

The Borrower shall be permitted to replace any Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.18, Section 2.19 or Section 2.21 or (b) is a Defaulting Lender hereunder; provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be continuing at the time of such replacement, (iii) prior to any such replacement, such Lender shall have taken no action under Section 2.18, Section 2.19 or Section 2.21(e), as applicable, so as to eliminate the continued need for payment of amounts owing pursuant to Section 2.18, Section 2.19 or Section 2.21, (iv) the replacement financial institution shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the Borrower shall be liable to such replaced Lender under Section 2.20 if any Term SOFR Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (vi) the replacement shall be a financial institution that, if not already a Lender, shall be reasonably acceptable to the Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 9.6 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein), (viii) with respect to payments due through such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.18, 2.19 or 2.21, as the case may be and (ix) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender. In the event any replaced Lender fails to execute the agreements required under Section 9.6 in connection with an assignment pursuant to this Section 2.23, the Borrower may, upon two (2) Business Days’ prior notice to such replaced Lender, execute such agreements on behalf of such replaced Lender. A Lender shall not be required to be replaced if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such replacement cease to apply.

 

2.24            [Reserved].

 

2.25            Defaulting Lenders.

 

Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

 

(a)            Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 9.1.

 

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(b)            Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise, and including any amounts made available to the Administrative Agent for the account of such Defaulting Lender pursuant to Section 9.7), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; fourth, to the payment of any amounts owing to the Administrative Agent or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Administrative Agent or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.25(b) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

(c)            Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing in their good faith judgment that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

 

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2.26            Incremental Term Loans.

 

(a)            At any time, the Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan commitments (any such incremental term loan commitment, which may be part of an existing tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); provided that the total aggregate amount for all such Incremental Term Loan Commitments shall not exceed $400,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Term Loan Lender”). Any Lender or any Incremental Term Loan Lender offered or approached to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan Commitment. Any Incremental Term Loan Commitment shall become effective as of such Increased Amount Date; provided that:

 

(A)no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Term Loan Commitment and (2) the making of any Incremental Term Loans pursuant thereto (except in connection with any Consolidated Company Investment; provided that in such case, no Event of Default under Sections 7.1(a) or (g) shall exist after giving effect thereto);

 

(B)the representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Increased Amount Date as if made on and as of such date (except for those which expressly relate to an earlier date) (except in connection with any Consolidated Company Investment not prohibited hereunder; provided that in such case, the representations and warranties set forth in Sections 3.1(i), 3.2, 3.3, 3.4, 3.6, 3.7 and 3.13 with respect to the Parent and its Subsidiaries (on a pro forma basis giving effect to such Acquisition), and customary specified acquisition agreement representations and warranties with respect to the entity and/or assets to be acquired, shall be true and correct in all material respects on and as of such Increased Amount Date);

 

(C)[reserved];

 

(D)the proceeds of any Incremental Term Loans shall be used solely for the Investment Purpose;

 

(E)each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder) shall constitute obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis;

 

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(F)in the case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement):

 

(w)            such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Term Loan Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Latest Maturing Loan or a maturity date earlier than the Latest Maturity Date;

 

(x)            the Applicable Percentage and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the applicable Incremental Term Loan Lenders and the Borrower on the applicable Increased Amount Date;

 

(y)            all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the existing Term Loan, shall be reasonably satisfactory to the Administrative Agent; and

 

(z)            such Incremental Term Loans shall be made available only to the Borrower and only in U.S. Dollars;

 

it being understood that, to the extent any financial maintenance covenant is added for the benefit of any Incremental Term Loan Commitment or any Incremental Term Loans, no consent with respect to such financial maintenance covenant shall be required from the Administrative Agent or any existing Lender so long as such financial maintenance covenant is added to this Agreement for the benefit of the existing Commitments and Loans;

 

(G)any Incremental Term Loan Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loans and each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the existing Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof among the existing Term Loans and the Incremental Term Loans);

 

(H)such Incremental Term Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Term Loan Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders or Credit Parties, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.26); and

 

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(I)the Credit Parties shall deliver or cause to be delivered any customary legal opinions or other customary closing documents (including a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Incremental Term Loan) reasonably requested by Administrative Agent in connection with any such transaction.

 

(b)            (i) The Incremental Term Loans shall be deemed to be Term Loans; provided that such Incremental Term Loan may be designated as a separate tranche of Term Loans for all purposes of this Credit Agreement.

 

(ii)            The Incremental Term Loan Lenders shall be included in any determination of the Required Lenders, and the Incremental Term Loan Lenders will not constitute a separate voting class for any purposes under this Credit Agreement.

 

(c)            On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Term Loan Lender with an Incremental Term Loan Commitment shall make an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Term Loan Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.

 

(d)            Notwithstanding any provision to the contrary contained herein, if a Subsidiary (other than the Borrower) shall, at the time of any proposed Incremental Term Loan, own assets consistent with those set forth in the Investment Purpose, and which the Administrative Agent deems eligible assets for purposes of this Agreement, then, at the Parent’s sole election, such Subsidiary may be joined as an additional borrower under this Agreement, subject to joinder documentation and related terms and conditions to be agreed upon by the Administrative Agent and the Credit Parties; provided that, it is understood and agreed that such joinder may be a condition precedent to the closing and funding of the proposed Incremental Term Loan if so requested by the financial institutions providing the proposed Incremental Term Loans.

 

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2.27            Circumstances Affecting Term SOFR. Subject to Section 2.17, in connection with any Term SOFR Loan, a request therefor, a conversion to or a continuation thereof or otherwise, if for any reason (i) the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that if Adjusted Term SOFR is utilized in any calculations hereunder or under any other Credit Document with respect to any Credit Party Obligations, interest, fees, commissions or other amounts, reasonable and adequate means do not exist for ascertaining Adjusted Term SOFR and the applicable Interest Period with respect to a proposed Term SOFR Loan on or prior to the first day of such Interest Period or (ii) the Required Lenders shall determine (which determination shall be conclusive and binding absent manifest error) that if Adjusted Term SOFR is utilized in any calculations hereunder or under any other Credit Document with respect to any Credit Party Obligations, interest, fees, commissions or other amounts, Adjusted Term SOFR does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during the applicable Interest Period and the Required Lenders have provided notice of such determination to the Administrative Agent, then, in each case, the Administrative Agent shall promptly give notice thereof to the Parent. Upon notice thereof by the Administrative Agent to the Parent, any obligation of the Lenders to make Term SOFR Loans, and any right of the Borrower to convert any Loan to or continue any Loan as a Term SOFR Loan, shall be suspended (to the extent of the affected Term SOFR Loans or the affected Interest Periods) until the Administrative Agent (with respect to clause (ii), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (A) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or the affected Interest Periods) or, failing that, (I) in the case of any request for a borrowing of an affected Term SOFR Loan, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans in the amount specified therein, and (B) any outstanding affected Term SOFR Loans will be deemed to have been converted into Base Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.20.

 

Article III

 

REPRESENTATIONS AND WARRANTIES

 

Each Credit Party makes the representations and warranties set out in this Article III (other than the representations and warranties set out in Section 3.10 which are made by the Parent only) to the Administrative Agent and each Lender on the Second Amendment Effective Date.

 

3.1            Status.

 

Each Credit Party is duly incorporated, organized or formed and validly existing under the law of its jurisdiction of incorporation.

 

3.2            Binding Obligations.

 

Subject to the Legal Reservations, the obligations expressed to be assumed by it in each Credit Document are legal, valid, binding and enforceable obligations.

 

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3.3            Non-Conflict with Other Obligations.

 

The entry into and performance by it of, and the transactions contemplated by, the Credit Documents do not and will not conflict with:

 

(a)            any law or regulation applicable to it, to the extent this would have a Material Adverse Effect;

 

(b)            its constitutional documents in any material respect; or

 

(c)            any agreement or instrument binding upon it or any of its assets, in each case to an extent or in a manner which would have a Material Adverse Effect.

 

3.4            Power and Authority.

 

It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into, performance and delivery of, the Credit Documents to which it is a party and the transactions contemplated by those Credit Documents.

 

3.5            Validity and Admissibility in Evidence.

 

All Authorizations required:

 

(a)            to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Credit Documents to which it is a party; and

 

(b)            by it to make the Credit Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

 

(c)            have been obtained or effected and are in full force and effect.

 

3.6            Governing Law and Enforcement.

 

Subject to the Legal Reservations:

 

(a)            the choice of New York law as the governing law of the Credit Documents will be recognized and enforced in its jurisdiction of incorporation; and

 

(b)            any judgment obtained in New York in relation to a Credit Document will be recognized and enforced in its jurisdiction of incorporation.

 

3.7            [Reserved].

 

3.8            No Filing or Stamp Taxes.

 

Under the law of its jurisdiction of incorporation it is not necessary that the Credit Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Credit Documents or the transactions contemplated by the Credit Documents except any filing, recording or enrolling or any tax or fee payable in relation to the Credit Documents which is referred to in any Legal Opinion and which will be made or paid promptly after the date of the relevant Credit Documents (to the extent required).

 

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3.9            No Default.

 

(a)            No Event of Default is continuing hereunder.

 

(b)            No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject, in each case, which would have a Material Adverse Effect.

 

3.10            Financial Statements.

 

Its most recent financial statements delivered pursuant to this Agreement:

 

(a)            have been prepared in accordance with the Accounting Principles which are stated to apply; and

 

(b)            fairly represent in all material respects the consolidated financial condition and operations of the Parent during the relevant period to which they relate, subject, in the case of quarterly and/or half-yearly financial statements, to normal year-end adjustments and the absence of certain notes, unless, in each case, otherwise referred to in those financial statements or the notes to them.

 

3.11            Environment.

 

It and each Material Company has obtained all requisite Environmental Approvals required for the carrying on of its business as currently conducted and is in compliance with:

 

(a)            the terms and conditions of such Environmental Approvals; and

 

(b)            all other applicable Environmental Laws,

 

where, in each case, if not obtained or complied with the failure or its consequences would have a Material Adverse Effect.

 

3.12            Anti-Corruption.

 

(a)            It and each Material Company, as far as it is aware (having made reasonable enquiry):

 

(i)            is conducting its businesses and is in compliance with applicable anti-corruption laws in all material respects;

 

(ii)            maintains policies and procedures reasonably designed to promote and achieve compliance with such laws applicable to it in the jurisdictions in which it operates;

 

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(iii)            is not subject or party to any material transaction pursuant to which it has made, offered to make, promised to make or authorized any Prohibited Payment; and

 

(iv)            is not subject to any investigation by any governmental entity with regard to any actual or alleged Prohibited Payment, which is reasonably likely to be adversely determined and which, if adversely determined, would reasonably be likely to have a Material Adverse Effect.

 

3.13            Sanctions.

 

Neither it nor any Material Company:

 

(a)            is a Restricted Party; or

 

(b)            has received written notice of or is or has been the subject of any claim, action, suit, proceeding or investigation with respect to Sanctions.

 

3.14            Pari Passu Ranking.

 

Its payment obligations under the Credit Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

 

3.15            No Proceedings.

 

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, are reasonably likely to be adversely determined, and which if so adversely determined would reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened in writing against it.

 

3.16            Compliance with ERISA.

 

(a)            Each Credit Party and its ERISA Affiliates administers its Plans, in compliance in all respects with all laws and regulations applicable to each of its Plans except as would not have a Material Adverse Effect.

 

(b)            No event or condition exists in relation to a Plan which is reasonably likely to result in the imposition of a lien or other encumbrance on any of its assets which is reasonably likely to have a Material Adverse Effect.

 

(c)            None of the following events have occurred with respect to any of the Credit Parties or their ERISA Affiliates:

 

(i)            any Reportable Event;

 

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(ii)            the termination of or withdrawal from, the filing of a notice of intent to terminate, the institution by the PBGC of proceeding to terminate, or the appointment of a trustee to administer, any Plan subject to Title IV of ERISA; and

 

(iii)            the engagement in any non-exempt prohibited transaction within the meaning of section 4975 of the Code or section 406 of ERISA;

 

(iv)            the incurrence of any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); and

 

(v)            a determination or receipt by the Credit Parties of notification that a Plan is, or is expected to be, in “at risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), or “endangered” or “critical status” within the meaning of Section 305 of ERISA,

 

in each case, except as would not have a Material Adverse Effect.

 

3.17            Investment Company Act.

 

It is not required to be registered as an Investment Company under the United States Investment Company Act of 1940.

 

3.18            Margin Stock and United States Securities Exchange Act.

 

No part of the proceeds of the Loans and other extensions of credit hereunder shall be used, directly or indirectly, for the purpose of purchasing or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States (the “Federal Reserve Board”). Neither the execution and delivery hereof by the Borrower, nor the performance by it of any of the transactions contemplated by this Agreement (including the direct or indirect use of the proceeds of the Loans and other extensions of credit hereunder) will violate or result in a violation of Regulation T, U or X of the Federal Reserve Board.

 

3.19            Use of Proceeds.

 

The Extensions of Credit will be used solely for the Investment Purpose and, in the case of the Closing Date Term Loans, were used to refinance the term loan outstanding under the Existing Credit Agreement, the proceeds of which Existing Credit Agreement were used for the Investment Purpose (as defined and described in the Existing Credit Agreement).

 

3.20            Compliance with Trading with the Enemy Act, OFAC Rules and Regulations, USA Patriot Act, FCPA and Beneficial Ownership Regulation.

 

Neither any Credit Party nor any Material Company is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended. Neither any Credit Party nor any Material Company is in violation of (i) the Trading with the Enemy Act, as amended, (ii) any of the foreign assets control regulations of the Office of Foreign Assets Control of the United States Treasury Department (“OFAC”) (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (iii) the USA Patriot Act or (iv) the Canadian AML Acts. The information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects as of the Second Amendment Effective Date.

 

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3.21            Repetition.

 

The Repeating Representations are deemed to be made by Credit Party by reference to the facts and circumstances then existing on:

 

(a)            other than in the case of the Repeating Representation made under Section 3.10, the date of each Notice of Conversion/Extension and the first day of each Interest Period;

 

(b)            in the case of the Repeating Representation made under Section 3.10, on the date of delivery of, and by reference to, the relevant set of financial statements delivered pursuant to Section 5.1; and

 

(c)            in the case of an Additional Guarantor, the day on which the company becomes an Additional Guarantor.

 

Article IV

 

CONDITIONS PRECEDENT

 

4.1            Conditions to Closing Date.

 

This Credit Agreement shall become effective upon the satisfaction of the following conditions precedent:

 

(a)            Execution of Credit Agreement and Credit Documents. Receipt by the Administrative Agent of a fully-executed counterpart of this Credit Agreement, executed by a duly authorized officer of each party hereto and in each case conforming to the requirements of this Credit Agreement.

 

(b)            Legal Opinion. Receipt by the Administrative Agent of the following legal opinions of counsel to the Credit Parties, in each case in form and substance reasonably acceptable to the Administrative Agent:

 

(i)            a legal opinion of Cravath, Swaine & Moore LLP, special New York counsel to the Credit Parties; and

 

(ii)            legal opinion of the general counsel of the Parent.

 

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(c)            Corporate Documents. Receipt by the Administrative Agent of the following (or their equivalent), each (other than with respect to clause (iv)) certified by the secretary or assistant secretary of the applicable Credit Party as of the Closing Date to be true and correct and in force and effect pursuant to a certificate in a form reasonably satisfactory to the Administrative Agent:

 

(i)            Articles of Incorporation. Copies of the articles of incorporation or charter documents of each Credit Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state of its organization.

 

(ii)            Resolutions. Copies of resolutions of the board of directors or comparable managing body of each Credit Party approving and adopting the respective Credit Documents (including the transactions contemplated therein) and authorizing execution and delivery thereof.

 

(iii)            Bylaws. Copies of the bylaws, operating agreement or partnership agreement of each Credit Party.

 

(iv)            Good Standing. Copies, where applicable, of certificates of good standing, existence or its equivalent of each Credit Party in its state or province of organization, certified as of a recent date by the appropriate Governmental Authorities of the applicable state or province of organization.

 

(d)            Officer’s Certificate. Receipt by the Administrative Agent of a certificate, in form and substance reasonably satisfactory to it, of a Responsible Officer certifying that after giving effect to each of the transactions contemplated by this Credit Agreement, the Credit Parties taken as a whole are solvent as of the Closing Date.

 

(e)            Interest; Notice of Conversion/Extension. Receipt by the Administrative Agent, on behalf of the Lenders, of all unpaid interest on the Loans that has accrued under the Existing Credit Agreement to (but excluding) the Closing Date. The Borrower shall have delivered to the Administrative Agent an Notice of Conversion/Extension in respect of the Loans outstanding as of the Closing Date.

 

(f)            Fees. Receipt by the Administrative Agent and the Lenders of all fees, if any, then owing pursuant to the Fee Letter or pursuant to any other Credit Document, which fees may be paid or netted from the proceeds of the initial Extension of Credit hereunder.

 

(g)            Patriot Act; Beneficial Ownership Regulation. Each of the Lenders shall have received, at least three (3) days prior to the Closing Date (to the extent reasonably requested on a timely basis at least seven (7) days prior to the Closing Date), all documentation and other information required by the applicable Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. To the extent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification;

 

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(h)            Representations and Warranties. The representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the Closing Date as if made on and as of such date (except for those which expressly relate to an earlier date).

 

(i)            No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing on the Closing Date or after giving effect to the Closing Date.

 

Article V

 

Information Undertakings

 

The Credit Parties covenant and agree that on the Second Amendment Effective Date, and so long as this Credit Agreement is in effect and until the Commitments have been terminated, no Loans remain outstanding and all amounts owing hereunder or under any other Credit Document or in connection herewith or therewith (other than contingent indemnity obligations) have been paid in full, the Credit Parties covenant and agree as follows:

 

5.1            Financial Statements

 

(a)            Subject to paragraph (b) below, the Credit Parties’ Agent shall supply to the Administrative Agent (or provide in accordance with Section 5.7):

 

(i)            as soon as the same become available, but in any event within 120 days after the end of each of its financial years, the audited consolidated financial statements of the Parent for that financial year (the “Annual Financial Statements”);

 

(ii)            commencing with the financial statements in respect of the first half of the financial year ending on December 31, 2025, as soon as the same becomes available, but in any event within 90 days of the end of the first half of each of its financial years, the consolidated financial statements of the Parent for that financial half-year provided that any financial statements delivered in respect of the second financial quarter of each relevant financial year of the Parent shall be deemed to satisfy this requirement (in either case the “Interim Financial Statements”).

 

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(b)            If the common stock of the Parent is listed or registered with an internationally recognized exchange and the regulators or other relevant authority of such exchange grant dispensation for the Parent to delay the publication of its financial statements, the time period for the delivery of financial statements in accordance with paragraph (a) above will be automatically extended to any new date by which the Parent is required by such regulator or authority to publish those financial statements.

 

5.2            Requirements as to Financial Statements

 

(a)            The Parent (or the Credit Parties’ Agent on behalf of the Parent) must notify the Administrative Agent of any material change in the Accounting Principles, practices or standards used in any Annual Financial Statements or Interim Financial Statements.

 

(b)            If requested by the Administrative Agent, the Parent (or the Credit Parties’ Agent on behalf of the Parent) must supply to the Administrative Agent (or provide in accordance with Section 5.7):

 

(i)            a full description of any change notified under paragraph (a) above; and

 

(ii)            a reconciliation statement (the “Reconciliation Statement”) showing sufficient information in such detail and format as may be reasonably required by the Administrative Agent to enable the Lenders to make a proper comparison between the financial position shown by the set of Financial Statements prepared on the changed basis and the most recent Annual Financial Statements delivered to the Administrative Agent under this Agreement and prepared according to the Accounting Principles.

 

(c)            Following any change referred to in paragraph (a) above, the Administrative Agent shall if requested by the Parent (or the Credit Parties’ Agent on behalf of the Parent), or the Parent (or the Credit Parties’ Agent on behalf of the Parent) shall if requested by the Administrative Agent, enter into discussions for a period of not more than 30 days and use reasonable endeavors to agree any amendments required to be made to any provisions of this Agreement which the Parties consider appropriate to ensure that the change does not result in a material alteration to the commercial effect of the terms of this Agreement. Any agreement between the Parent (or the Credit Parties’ Agent on behalf of the Parent) and the Administrative Agent, with the prior consent of the Required Lenders, will be binding on all the Parties and from the time of such agreement, no Reconciliation Statements will be required to be delivered under this Agreement in respect of the relevant changes.

 

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(d)            If no agreement is reached under paragraph (c) above on the required amendments to this Agreement, the Parent (or the Credit Parties’ Agent on behalf of the Parent) or the Administrative Agent may, at the expiry of the 30 day period mentioned in paragraph (c) above (or earlier if the Administrative Agent and the Credit Parties’ Agent acknowledge that no agreement will be reached within such period), appoint an independent firm of auditors or accountants (in each case acting as experts and not arbitrators) to determine any amendment required to be made to any provisions of this Agreement which those auditors or accountants consider appropriate to ensure that the change does not result in a material alteration to the commercial effect of the terms of this Agreement. Those amendments shall take effect when so determined by those auditors or accountants, and from the time of such determination no Reconciliation Statements will be required to be delivered under this Agreement in respect of the relevant changes. The cost and expense of those auditors or accountants shall be for the account of the Parent.

 

(e)            All financial statements and reports to be delivered shall be prepared on the basis of the applicable Accounting Principles.

 

(f)            Any ratios, computations and other determinations shall be calculated in conformity with applicable Accounting Principles (provided that no Default or Event of Default shall arise from a breach of, or non-compliance with, the Credit Agreement solely due to the re-calculation of a ratio, computation or determination under the Credit Agreement in conformity with such applicable Accounting Principles).

 

5.3            [Reserved]

 

5.4            [Reserved]

 

5.5            Information: Miscellaneous

 

(a)            The Credit Parties’ Agent shall supply to the Administrative Agent:

 

(i)            at the same time, or as soon as reasonably practicable after, all documents dispatched by the Parent to its shareholders (or any class of them) or its creditors generally;

 

(ii)            at the same time as, or as soon as reasonably practicable after, copies of periodic reporting delivered to the holders of any public debt securities of any member of the Group;

 

(iii)            details of any litigation, arbitration or administrative proceedings which are current or pending against any Material Company and which are reasonably likely to be adversely determined and would if adversely determined, have a Material Adverse Effect; and

 

(iv)            such other information regarding the financial condition, business and operations of any member of the Group as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request.

 

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(b)            Any obligation to provide information in paragraph (a) above shall be deemed satisfied to the extent the relevant information is published on a Designated Website or filed with the United States Securities and Exchange Commission via the EDGAR filing system or any successor system and such information is publicly available.

 

5.6            Notification of Default

 

Each Credit Party shall notify the Administrative Agent of any Event of Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Credit Party is aware that a notification has already been provided by another Credit Party).

 

5.7            Use of Websites

 

(a)            The Credit Parties’ Agent may satisfy any obligation under this Agreement to deliver any information by:

 

(i)            filing the information with the United States Securities and Exchange Commission via the EDGAR filing system (or any successor system), provided that such information is publicly available; and/or

 

(ii)            posting the information onto an electronic website designated by the Credit Parties’ Agent and the Administrative Agent (the “Designated Website”) if:

 

(A)the Administrative Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

 

(B)both the Credit Parties’ Agent and the Administrative Agent are aware of the address of and any relevant password specifications for the Designated Website; and

 

(C)the information is in a format previously agreed between the Credit Parties’ Agent and the Administrative Agent.

 

Each Lender agrees that www.smurfitkappa.com shall be a Designated Website for the purposes of this Agreement, without prejudice to any other website so designated pursuant to this Section 5.7.

 

(b)            The Administrative Agent shall supply each Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Credit Parties’ Agent and the Administrative Agent.

 

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(c)            The Credit Parties’ Agent shall promptly upon becoming aware of its occurrence notify the Administrative Agent if:

 

(i)            the Designated Website cannot be accessed due to technical failure;

 

(ii)            the password specifications for the Designated Website change;

 

(iii)            any new information which is required to be provided under this Agreement is posted onto the Designated Website;

 

(iv)            any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

 

(v)            the Credit Parties’ Agent becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

 

If the Credit Parties’ Agent notifies the Administrative Agent under paragraph (i) or (v) above, all information to be provided by the Credit Parties’ Agent under this Agreement after the date of that notice shall be supplied in paper form or in accordance with paragraph (a)(i) above unless and until the Administrative Agent, the Credit Parties’ Agent and each Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

 

(d)            Any Lender may request, through the Administrative Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Credit Parties’ Agent shall comply with any such request within ten Business Days.

 

5.8            “Know Your Customer” Information, etc.

 

The Credit Parties’ Agent shall reasonably promptly: (a) supply to the Administrative Agent all documentation and other information required by the applicable Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, or applicable anti-corruption statutes, including the Foreign Corrupt Practices Act, that is reasonably requested from time to time by the Administrative Agent or any Lender, and (b) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, deliver an updated Beneficial Ownership Certification as promptly as practicable following any change in the information provided in the Beneficial Ownership Certification delivered to any Lender in relation to the Borrower that would result in a change to the list of beneficial owners identified in such certification.

 

Article VI

 

general Undertakings

 

The undertakings in this Article VI remain in force from the Second Amendment Effective Date for so long as any amount is outstanding under the Credit Documents or any Commitment is in force.

 

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6.1            Authorizations

 

Each Credit Party shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect, any authorization required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Credit Documents and to ensure (subject to the Legal Reservations) the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Credit Document.

 

6.2            Compliance with Laws

 

Each Credit Party shall comply in all respects with all laws to which it is subject, if failure to do so would have a Material Adverse Effect.

 

6.3            Negative Pledge

 

In this Section 6.3, “Quasi-Security” means an arrangement or transaction described in paragraph (b) below.

 

(a)            No Credit Party shall (and the Parent shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.

 

(b)            No Credit Party shall (and the Parent shall ensure that no other member of the Group will):

 

(i)            sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a Credit Party;

 

(ii)            sell, transfer or otherwise dispose of any of its receivables on recourse terms;

 

(iii)            enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

 

(iv)            enter into any other preferential arrangement having a similar effect,

 

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

 

(c)            Paragraphs (a) and (b) above do not apply to any Security or (as the case may be) Quasi-Security, listed below:

 

(i)            any Security or Quasi-Security existing on the Second Amendment Effective Date (including pursuant to the Transaction) and/or any replacement or renewals thereof (including in respect of any refinancing of the obligations secured by such existing Security or Quasi-Security) provided that any limit on the amount secured is not subsequently increased other than as a result of the capitalization of interest;

 

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(ii)            any Security or Quasi-Security arising pursuant to any banker’s liens or rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with depository institutions and securities accounts and other financial assets maintained with a securities intermediary, cash management, netting or set-off arrangement, in each case, entered into by any member of the Group in the ordinary course of its day to day business or its banking arrangements for the purpose of netting debit and credit balances (and if customary in the relevant jurisdiction, any other Security or Quasi-Security over cash balances granted in favor of an account bank in accordance with its general terms and conditions);

 

(iii)            any payment or close out netting or set-off arrangement pursuant to any hedging or derivative transaction entered into by a member of the Group which is not for speculative purposes and is not otherwise prohibited by the Credit Documents (excluding any Security or Quasi-Security under a credit support arrangement in relation to a hedging or derivative transaction);

 

(iv)            any lien arising by operation of law or by agreement to substantially the same effect or in the course of its day to day business and not as a result of any default or omission by any member of the Group;

 

(v)            any Security or Quasi-Security over or affecting any asset or undertaking acquired by a member of the Group after the Second Amendment Effective Date if:

 

(A)the principal amount secured has not been incurred or increased in contemplation of or since the acquisition of that asset or undertaking by a member of the Group (other than as a result of the capitalization of interest); and

 

(B)the maturity date of the principal amount secured has not been extended in contemplation of or since the acquisition (other than by way of replacing or refinancing that principal amount);

 

(vi)            any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Group after the Second Amendment Effective Date, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Group if:

 

(A)the principal amount secured has not been incurred or increased in contemplation of or since the acquisition of that company (other than as a result of the capitalization of interest); and

 

(B)the maturity date of the principal amount secured has not been extended in contemplation of or since the acquisition (other than by way of replacing or refinancing that principal amount);

 

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(vii)            any Security or Quasi-Security entered into pursuant to any Credit Document;

 

(viii)            any interest of title of an owner of equipment or inventory on loan or consignment to, or subject to any title retention or similar arrangement with, any member of the Group, and any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group (including any related Uniform Commercial Code financing statements, or equivalent filings, registrations or agreements in any other jurisdiction) in the ordinary course of trading and not arising as a result of any default or omission by any member of the Group, or which are contained in any supplier’s standard conditions of supply;

 

(ix)            any Security or Quasi-Security over goods and documents of title thereto arising under documentary credit transactions entered into in the ordinary course of trade and on terms customary in that trade;

 

(x)            any Security or Quasi-Security under leases, hire purchase agreements, conditional sale agreements or other agreements for the acquisition of assets or undertakings on deferred payment terms to the extent such Security or Quasi-Security relates only to the asset or undertaking leased or acquired;

 

(xi)            any Security or Quasi-Security created over any undertaking or asset acquired or developed provided that such Security or Quasi-Security is for the sole purpose of financing or refinancing the acquisition or development of such undertaking or asset and provided that the principal amount of indebtedness secured does not exceed the cost of that acquisition or development;

 

(xii)            any Security or Quasi-Security granted pursuant to or in connection with a Permitted Receivables Securitization;

 

(xiii)            rights over cash deposits granted in favor of a landlord for the purposes of securing performance of rent and service charge obligations under licenses, subleases or leases of real property not prohibited by this Agreement in respect of the Group;

 

(xiv)            liens for taxes not yet due or statutory liens imposed by the taxing authorities of any applicable jurisdiction in respect of any taxes, assessments or levies which are being contested in good faith by appropriate proceedings, provided in each case, that adequate reserves with respect to such contested taxes are maintained on the books of the appropriate members of the Group in conformity with the Accounting Principles;

 

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(xv)            any Security or Quasi-Security arising by operation of law as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes and/or VAT purposes or any analogous arrangement in any other jurisdiction, in each case, of which any Credit Party is or has been a member;

 

(xvi)            cash cover relating to a letters of credit or other documentary credits entered into in the ordinary course of trading;

 

(xvii)            any Security or Quasi-Security arising from or in connection with a disposal not prohibited under Section 6.4;

 

(xviii)            any Security or Quasi-Security arising from or in connection with cash deposits, escrow arrangements or similar arrangements in connection with a letter of intent or purchase agreement for an acquisition or other transaction not prohibited under this Agreement;

 

(xix)            any Security or Quasi-Security granted by any member of the Group:

 

(A)pursuant to or in connection with workmen’s compensation, unemployment insurance, social security health, disability, or other employee benefits, or property, casualty or liability insurance, assessments or other similar charges or deposits incidental to the conduct of the business of the relevant members of the Group (including security deposits posted with landlords and utility companies) or the ownership of any of their assets or properties or incurred pursuant to any analogous laws or regulations, in each case in the ordinary course of business and provided that such Security or Quasi-Security does not secure Financial Indebtedness;

 

(B)pursuant to or in connection with letters of credit, bank guarantees or similar instruments issued for the account of any member of the Group supporting obligations of the type set forth in paragraph (A) above;

 

(C)pursuant to or in connection with any carriers, warehousemen, mechanics, materialmen and other Security or Quasi-Security imposed by law;

 

(D)pursuant to or in connection with performance or surety bonds and other obligations of a like nature;

 

(E)pursuant to or in connection with zoning restrictions, easements, and similar restrictions on use of real property;

 

(F)pursuant to or in connection with interests of a licensor, lessor, sublicensor or sublessor (including any related Uniform Commercial Code financing statements (or equivalent filings, registrations or agreements in other jurisdictions)) under any lease, license, sublease or sublicense not otherwise prohibited by this Agreement;

 

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(G)pursuant to or in connection with precautionary Uniform Commercial Code financing statements regarding leases not otherwise prohibited by this Agreement;

 

(H)in favor of the United States of America or any department or agency of it, or in favor of any state government or political subdivision of it, or in favor of a prime contractor under a government contract of the United States, or of any state government or any political subdivision of it, and, in each case, resulting from acceptance of partial, progress, advance or other payments under government contracts of the United States, or of any state government or any political subdivision of it, or subcontracts under them;

 

(I)of a collecting bank arising in the ordinary course of business under Section 4-208 (or the applicable corresponding section) of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon; or

 

(J)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;

 

(xx)            any Security or Quasi-Security securing indebtedness issued (including via exchange offer and regardless of when issued) in the capital markets if and to the extent that the obligations under this Agreement are secured by Security or Quasi-Security (as applicable) equal and ratable with the Security or Quasi-Security (as applicable) securing such indebtedness;

 

(xxi)            any Security or Quasi-Security arising as a result of any litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency;

 

(xxii)            any Security or Quasi-Security granted by a member of the Group in favor of any other member of the Group;

 

(xxiii)            any Security or Quasi-Security constituting contractual rights of set-off not securing any Financial Indebtedness;

 

(xxiv)            any Security, Quasi-Security or other restriction or encumbrance granted in favor or for the benefit of a joint venture partner with respect to the pledge or transfer of the equity interests of any joint venture;

 

(xxv)            any Security or Quasi-Security created with the prior written consent of the Administrative Agent (acting on the instructions of the Required Lenders); and

 

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(xxvi)            any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi-Security given by any member of the Group other than any permitted under paragraphs (i) to (xxv) above) does not exceed $3,000,000,000 (or its equivalent in another currency or currencies) or, if higher, 7.5% of Consolidated Total Assets.

 

6.4            Disposals

 

No Credit Party shall (and the Parent shall ensure that no other member of the Group will) sell, lease, transfer or otherwise dispose of assets constituting all or substantially all of the business or assets of the Group except:

 

(a)            between one or more members of the Group;

 

(b)            pursuant to a Permitted Reorganization or a Permitted Holdco Reorganization;

 

(c)            pursuant to the Transaction; or

 

(d)            with the consent of the Administrative Agent (acting on the instructions of the Required Lenders).

 

6.5            Financial Indebtedness

 

(a)            Except as permitted under paragraph (b) below, the Parent shall ensure that no member of the Group which is not a Credit Party will incur or allow to remain outstanding any Financial Indebtedness.

 

(b)            Paragraph (a) above does not apply to Financial Indebtedness which is:

 

(i)            incurred under the Credit Documents;

 

(ii)            any Financial Indebtedness of a member of the Group existing on the Second Amendment Effective Date (as amended, restated, replaced or refinanced from time to time but not increased other than as a result of the capitalization of interest);

 

(iii)            any Financial Indebtedness (as amended, restated, replaced or refinanced from time to time) of any person acquired by a member of the Group on or after the Second Amendment Effective Date (including pursuant to the Transaction) which is incurred under arrangements in existence at the date of acquisition, but not incurred or increased (other than as a result of the capitalization of interest) or its maturity date extended in contemplation of, or since, that acquisition (other than by way of a replacement or a refinancing);

 

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(iv)            any Financial Indebtedness arising under any hedging or derivative transaction entered into in the ordinary course of business and not for speculative purposes;

 

(v)            any Financial Indebtedness arising under any cash management agreement (including any short term exposure overdrafts and related liabilities arising from treasury, depositary, cash management services, cash pooling arrangements or in connection with any automated clearinghouse transfers of funds) entered into by a member of the Group in the ordinary course of its day to day business or banking arrangements;

 

(vi)            any Financial Indebtedness arising as a result of or in connection with:

 

(A)any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of share capital (or any class of share capital);

 

(B)the repayment or distribution of any dividend or share premium reserve; or

 

(C)the redemption, repurchase, defeasance, retirement or repayment any of share capital;

 

(vii)            any Financial Indebtedness arising under a Permitted Guarantee, including any guarantee by a Credit Party of Financial Indebtedness that is otherwise permitted to exist or be incurred pursuant to the terms of the Credit Documents;

 

(viii)            any Financial Indebtedness arising by operation of law as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes, or analogous arrangement in any other jurisdiction, in each case, of which any Credit Party is or has been a member;

 

(ix)            any Financial Indebtedness to the extent covered by a letter of credit or guarantee issued under an Ancillary Facility (as defined in the Facilities Agreement as in effect on the Second Amendment Effective Date);

 

(x)            any Financial Indebtedness consisting of letters of credit and bank guarantees to support rental obligations, performance bonds, completion guarantees, surety bonds, custom bonds or similar obligations;

 

(xi)            any Financial Indebtedness incurred or outstanding pursuant to or in connection with a Permitted Receivables Securitization;

 

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(xii)            any Financial Indebtedness incurred under any lease (including any finance or capital lease, concession, license, operating lease or other arrangement (or guarantee thereof));

 

(xiii)            any Financial Indebtedness arising as a result of any judgment or order of a court, arbitral body or agency pursuant to or in connection with any litigation, arbitration or administrative proceedings;

 

(xiv)            any Financial Indebtedness (including obligations in respect of letters of credit, bank guarantees and similar instruments) providing workers’ compensation, social security, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such person, in each case incurred in the ordinary course of business;

 

(xv)            any Financial Indebtedness arising in the ordinary course of its day-to-day business as a result of participation in any customer-sponsored supply chain financing program;

 

(xvi)            not permitted by the preceding paragraphs and the outstanding principal amount of which (when aggregated with the principal amount of any other indebtedness of any member of the Group which is not a Credit Party other than any indebtedness permitted under paragraphs (i) to (xv) above) does not exceed $3,000,000,000 (or its equivalent in another currency or currencies) or, if higher, 7.5% of the Consolidated Total Assets in aggregate at any time.

 

6.6            Mergers and Sale of Assets

 

No Credit Party shall enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction, other than any Permitted Reorganization, Permitted Holdco Reorganization or pursuant to the Transaction.

 

6.7            Change of Business

 

The Parent shall procure that no substantial change is made to the general nature of the business of the Group (taken as a whole) from that carried on at the Second Amendment Effective Date.

 

6.8            Pari Passu Ranking

 

Each Credit Party shall ensure that its payment obligations under the Credit Documents will at all times rank at least pari passu with all its other unsecured and unsubordinated creditors, except those whose claims are mandatorily preferred by law.

 

6.9            Use of Proceeds

 

The Borrower shall use the Loans (including the Incremental Term Loans) solely for the purposes provided in Section 3.19.

 

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6.10            ERISA

 

(a)            Each Credit Party shall, and shall ensure that its ERISA Affiliates will, administer its Plans and shall comply in all respects with all laws and regulations applicable to each of its Plans, in each case except as would not have a Material Adverse Effect.

 

(b)            Each of the Credit Parties and its ERISA Affiliates shall ensure that no event or condition exists at any time in relation to a Plan which is reasonably likely to result in the imposition of a lien or other encumbrance on any of its assets which is reasonably likely to have a Material Adverse Effect.

 

(c)            Each Credit Party shall procure that none of the following events have occurred with respect to it or its ERISA Affiliates, and each Credit Party shall promptly (and in any event within 20 Business Days) notify the Administrative Agent upon becoming aware of any of the following events:

 

(i)            any Reportable Event;

 

(ii)            the termination of or withdrawal from, the filing of a notice of intent to terminate, the institution by the PBGC of any proceeding to terminate, or the appointment of a trustee to administer, any Plan subject to Title IV of ERISA; and

 

(iii)            the engagement in any non-exempt prohibited transaction within the meaning of section 4975 of the Code or section 406 of ERISA;

 

(iv)            the incurrence of any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); and

 

(v)            a determination or receipt by the Credit Party of notification that a Plan is, or is expected to be, in “at risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), or “endangered” or “critical status” within the meaning of Section 305 of ERISA,

 

in each case, except as would not have a Material Adverse Effect.

 

6.11            Additional Guarantors

 

(a)            Subject to compliance with the provisions of Section 5.8, the Credit Parties’ Agent may request that any member of the Group becomes an Additional Guarantor.

 

(b)            A member of the Group shall become an Additional Guarantor if:

 

(i)            the Credit Parties’ Agent delivers to the Administrative Agent a duly completed and executed Joinder Agreement; and

 

(ii)            the Administrative Agent receives the items referred to in Section 4.1(a) in respect of such Guarantor, and a certificate of a Responsible Officer with respect to the representations and warranties in Article III.

 

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(c)            The Administrative Agent shall notify the Credit Parties’ Agent and the Lenders promptly upon being satisfied that it has received the documents listed in paragraph (b) above.

 

Notwithstanding anything herein to the contrary, in no event shall a Captive Insurance Subsidiary be required to become a Guarantor.

 

6.12            Resignation of a Guarantor

 

(a)            The Credit Parties’ Agent may request that a Guarantor (other than the Parent (unless it is simultaneously ceasing to be the Parent due to a Permitted Holdco Reorganization)) ceases to be a Guarantor by delivering to the Administrative Agent a resignation letter in form and substance reasonably satisfactory to the Administrative Agent.

 

(b)            Subject to Section 9.21, the Administrative Agent shall accept such letter and notify the Credit Parties’ Agent and the Lenders of its acceptance if no Default is continuing or would result from the acceptance of such letter (and the Credit Parties’ Agent has confirmed this is the case).

 

6.13            Insurance The Credit Parties shall, and shall cause each Subsidiary that is a Material Company to, maintain or cause to be maintained with financially sound and reputable insurers or through self insurance (including with a Captive Insurance Subsidiary), risk retention or risk transfer programs, insurance with respect to its properties and business, and the properties and business of the Subsidiaries, against loss or damage of the kinds that the Parent in its judgment deems reasonable, such insurance to be of such types and in such amounts and subject to such deductibles and self-insurance programs as the Parent in its judgment deems reasonable.

 

Article VII

 

EVENTS OF DEFAULT

 

Each of the events or circumstances set out in this Article VII is an Event of Default, except for Section 7.13, Section 7.14 and Section 7.15.

 

7.1            Non-Payment

 

Any Credit Party does not pay on the due date any amount payable pursuant to a Credit Document at the place and in the currency in which it is expressed to be payable unless:

 

(a)            its failure to pay is caused by:

 

(i)            administrative or technical error; or

 

(ii)            a Disruption Event; and

 

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(b)            payment is made within:

 

(i)            (in the case of paragraph (a)(i) above) five Business Days of its due date; or

 

(ii)            (in the case of paragraph (a)(ii) above) ten Business Days of its due date.

 

7.2            Other Obligations

 

(a)            Subject to paragraph (b) below, any Credit Party does not comply with any provision of the Credit Documents (other than those referred to in Section 7.1 or as a result of noncompliance with Section 6.9).

 

(b)            Other than as specified in paragraph (a) above, no Event of Default will occur under paragraph (a) above if the failure to comply is capable of remedy and is remedied within 20 Business Days of the earlier of (i) the Administrative Agent giving notice to the Credit Parties’ Agent and (ii) the relevant Credit Party or the Credit Parties’ Agent becoming aware of the failure to comply.

 

7.3            Misrepresentation

 

(a)            Any representation or warranty made or deemed to be made by any Credit Party in this Agreement or in any other Credit Document is or proves to have been incorrect, untrue or misleading in any material respect when made or deemed to be made.

 

(b)            No Event of Default under paragraph (a) above will occur if the event or circumstance giving rise to the representation or statement being incorrect, untrue or misleading is capable of remedy and is remedied within 20 Business Days of the earlier of (i) the Administrative Agent giving notice to the Credit Parties’ Agent and (ii) the relevant Credit Party or the Credit Parties’ Agent becoming aware of the misrepresentation.

 

7.4            Cross Acceleration

 

(a)            Any Financial Indebtedness of any Credit Party or Material Company is not paid when due nor within any applicable grace period, unless such failure to pay is caused by a temporary administrative error, a technical error or a Disruption Event, and in any event such payment is made within five Business Days of the end of any applicable grace period.

 

(b)            Any Financial Indebtedness of any Credit Party or Material Company is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

 

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(c)            No Event of Default will occur under this Section 7.4 if:

 

(i)            the aggregate amount of Financial Indebtedness falling within paragraphs (a) and (b) above is less than $150,000,000 (or its equivalent in any other currency or currencies); or

 

(ii)            the Financial Indebtedness was incurred and/or is outstanding pursuant to or in connection with a Permitted Receivables Securitization.

 

7.5            Insolvency

 

(a)            A Material Company is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any of the Credit Parties in their capacities as such) with a view to rescheduling any of its indebtedness.

 

(b)            A Material Company is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due or insolvent.

 

(c)            A moratorium is declared in respect of any indebtedness of any Material Company.

 

7.6            Insolvency Proceedings

 

(a)            Subject to paragraph (b) below, any corporate action, legal proceedings or other formal or legal procedure or step is taken in relation to:

 

(i)            the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, examinership or reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Material Company;

 

(ii)            a composition, compromise, assignment or arrangement with any creditor of any Material Company;

 

(iii)            the appointment of a liquidator, receiver, administrative receiver, administrator, examiner, process advisor, compulsory manager or other similar officer in respect of any Material Company or any of its assets with an aggregate value in excess of $100,000,000 (or its equivalent in any other currency or currencies); or

 

(iv)            enforcement of any Security over any assets of any Material Company with an aggregate value in excess of $100,000,000 (or its equivalent in any other currency or currencies),

 

or any analogous procedure or step is taken in any jurisdiction.

 

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(b)            Paragraph (a) above shall not apply to:

 

(i)            any winding-up petition which is contested in good faith as being frivolous or vexatious and is discharged, stayed or dismissed within 20 Business Days of commencement; or

 

(ii)            any step or procedure contemplated by a Permitted Reorganization or a Permitted Holdco Reorganization.

 

7.7            Creditors’ Process

 

Any expropriation, attachment, sequestration, distress, execution or Dutch executory attachment (executoriaal beslag) affects any asset or assets of any Credit Party having an aggregate value in excess of $100,000,000 (or its equivalent in any other currency or currencies) and is not discharged within 20 Business Days.

 

7.8            Ownership of Credit Parties

 

Any Credit Party (other than the Parent) is not or ceases to be a member of the Group (other than pursuant to a Permitted Holdco Reorganization, a Permitted Reorganization or as a result of a disposal which is not prohibited under the terms of this Agreement).

 

7.9            Unlawfulness

 

It is or becomes unlawful for any Credit Party to perform any of its obligations under the Credit Documents to an extent which would be materially prejudicial to the Lenders.

 

7.10            Repudiation

 

Any Credit Party repudiates any Credit Document or evidences an intention to repudiate any Credit Document.

 

7.11            United States Bankruptcy Laws

 

Any of the following occurs in respect of any Credit Party in each case under the Bankruptcy Code:

 

(a)            it makes a general assignment for the benefit of creditors;

 

(b)            it commences a voluntary case or proceeding under the Bankruptcy Code; or

 

(c)            an involuntary case under the Bankruptcy Code is commenced against it and is not dismissed or stayed within 60 days after commencement of the case; or

 

(d)            an order for relief or other order approving any case or proceeding is entered under the Bankruptcy Code,

 

in each case, other than in respect of any Permitted Reorganization or a Permitted Holdco Reorganization.

 

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7.12            [Reserved]

 

7.13            Acceleration; Remedies

 

Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, or upon the request and direction of the Required Lenders shall, by written notice to the Borrower take any of the following actions (including any combination of such actions):

 

(a)            Termination of Commitments. Declare the Commitments terminated whereupon the Commitments shall be immediately terminated.

 

(b)            Acceleration; Demand. Declare the unpaid principal of and any accrued interest in respect of all Loans and any and all other indebtedness or obligations (including fees) of any and every kind owing by any Credit Party to the Administrative Agent and/or any of the Lenders hereunder to be due, whereupon the same shall be immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party.

 

(c)            Enforcement of Rights. Exercise any and all rights and remedies created and existing under the Credit Documents, whether at law or in equity.

 

(d)            Rights Under Applicable Law. Exercise any and all rights and remedies available to the Administrative Agent or the Lenders under applicable law.

 

Notwithstanding the foregoing, if an Event of Default specified in Section 7.11 shall occur, then the Commitments shall automatically terminate and all Loans, all accrued interest in respect thereof, all accrued and unpaid fees and other indebtedness or obligations owing to the Administrative Agent and/or any of the Lenders hereunder automatically shall immediately become due and payable without presentment, demand, protest or the giving of any notice or other action by the Administrative Agent or the Lenders, all of which are hereby waived by the Credit Parties.

 

7.14            Permitted Receivables Securitizations

 

Notwithstanding any provision of this Agreement to the contrary, in connection with a Permitted Receivables Securitization any member of the Group may, without limitation, do any of the following:

 

(a)            establish or procure the establishment of a Securitization SPV;

 

(b)            transfer receivables (including any bills of exchange and claims and rights of a person to receive payment arising from the provision of goods, credit or services and related assets (including, but not limited to, all collateral securing such receivable, proceeds collected on such receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with receivables securitization transactions and any related hedging obligations (whether existing now or in the future))) to a Securitization SPV either directly or indirectly;

 

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(c)            create, in respect of the bank accounts into which the collections in respect of the transferred receivables in respect of a Permitted Receivables Securitization (including in respect of receivables which are not purchased by a Securitization SPV provided that the portion of cash in the relevant account which is attributable to such receivables is held on trust for members of the Group other than Securitization SPVs or is otherwise transferred to members of the Group other than any Securitization SPV) are paid (and provided that no other amounts are paid into such accounts), trusts, pledges, charges or other account protection arrangements, whether contractual or proprietary in nature; and/or direct customers (including in respect of receivables which are not purchased by a Securitization SPV, provided that the portion of cash in the relevant account which is attributable to such receivables is held on trust for members of the Group other than Securitization SPVs or is otherwise transferred to members of the Group other than any Securitization SPV), to one or more collection accounts (whether or not in the name of a Group member or a Securitization SPV);

 

(d)            grant Security or Quasi-Security over the shares of any Securitization SPV; or

 

(e)            provide loans to a Securitization SPV in connection with, and as permitted under, a Permitted Receivables Securitization, but only to the extent consistent with the Non-Recourse nature of the Permitted Receivables Securitization,

 

and all the representations, warranties, covenants and other terms of each Credit Document will be construed in such a way to permit any Permitted Receivables Securitization.

 

7.15            Clean-Up Period

 

(a)            In this Section, “Clean-Up Period” means the period commencing on the Second Amendment Effective Date and ending on the date falling 120 days after the Second Amendment Effective Date.

 

(b)            Notwithstanding any other provision of any Credit Document, but subject to paragraphs (c) and (d) below and until the end of the Clean-Up Period, any matter or circumstance that exists in respect of the Group which would constitute a breach of representation or warranty, a breach of undertaking or an Event of Default will be deemed not to be a breach of representation or warranty, a breach of undertaking or an Event of Default (as the case may be) if:

 

(i)            it would have been (if it were not for this provision) a breach of representation or warranty, a breach of undertaking or an Event of Default only by reason of circumstances relating exclusively to the WestRock Group (or any obligation to procure or ensure in relation to the WestRock Group);

 

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(ii)            it is capable of remedy within the Clean-Up Period and reasonable steps are being taken to remedy it;

 

(iii)            the circumstances giving rise to it have not been procured or approved by any member of the Group (other than any member of the WestRock Group); and

 

(iv)            it is not reasonably likely to have a Material Adverse Effect.

 

(c)            Paragraph (b) above shall not apply to any matter or circumstance referred to in Section 7.1, Section 7.2 (if as a result of noncompliance with Section 9.20(d), or Section 7.11).

 

If the relevant matter or circumstance is continuing on or after the end of the Clean-Up Period, there shall be a breach of representation or warranty, breach of undertaking or Event of Default, as the case may be notwithstanding paragraph (b) above (and without prejudice to the rights and remedies of the holders of the Credit Party Obligations).

 

Article VIII

 

AGENCY PROVISIONS

 

8.1            Appointment.

 

Each Lender hereby irrevocably designates and appoints CoBank as the Administrative Agent of such Lender under this Credit Agreement, and each such Lender irrevocably authorizes CoBank, as the Administrative Agent for such Lender, to take such action on its behalf under the provisions of this Credit Agreement and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Credit Agreement, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Credit Agreement, none of the Administrative Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Credit Agreement or otherwise exist against the Administrative Agent.

 

8.2            Delegation of Duties.

 

Anything herein to the contrary, notwithstanding, none of the bookrunners, arrangers or other agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.

 

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The Administrative Agent may execute any of its duties under this Credit Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by them with reasonable care. Without limiting the foregoing, the Administrative Agent may appoint one of its Affiliates as its agent to perform its functions hereunder relating to the advancing of funds to the Borrower and distribution of funds to the Lenders and to perform other functions of the Administrative Agent hereunder.

 

8.3            Exculpatory Provisions.

 

The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Credit Documents. Without limiting the generality of the foregoing, the Administrative Agent:

 

(a)            shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

 

(b)            shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose it to liability or that is contrary to any Credit Document or applicable law; and

 

(c)            shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Credit Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

 

The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 9.1 and 7.2) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction pursuant to a final non-appealable judgment.

 

The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Credit Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

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8.4            Reliance by Administrative Agent.

 

The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

8.5            Notice of Default.

 

The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or the Parent referring to this Credit Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders; provided, however, that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders except to the extent that this Credit Agreement expressly requires that such action be taken, or not taken, only with the consent or upon the authorization of the Required Lenders, or all of the Lenders, as the case may be.

 

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8.6            Non-Reliance on Administrative Agent and Other Lenders.

 

Each Lender expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representation or warranty to it and that no act by the Administrative Agent hereinafter taken, including any review of the affairs of the Credit Parties, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Credit Parties and made its own decision to make its Loans hereunder and enter into this Credit Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Credit Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Credit Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Credit Parties which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.

 

8.7            Administrative Agent in its Individual Capacity.

 

The Administrative Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Credit Parties as though the Administrative Agent were not the Administrative Agent hereunder. With respect to its Loans made or renewed by it and any Note issued to it, the Administrative Agent shall have the same rights and powers under this Credit Agreement as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include the Administrative Agent in its individual capacity.

 

8.8            Successor Administrative Agent.

 

The Administrative Agent may resign as the Administrative Agent upon thirty (30) days’ prior notice to the Parent and the Lenders. If the Administrative Agent shall resign as the Administrative Agent under this Credit Agreement and the other Credit Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be approved by the Parent (so long as no Event of Default has occurred and is continuing), whereupon such successor agent shall succeed to the rights, powers and duties of the resigning Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the resigning Administrative Agent’s rights, powers and duties as the Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Credit Agreement or any holders of the Notes or Credit Party Obligations; provided that if the Required Lenders appoint a Defaulting Lender, then such Lender shall not succeed to the rights, powers and duties of the resigning Administrative Agent. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the resigning Administrative Agent gives notice of its resignation, then the resigning Administrative Agent may on behalf of the Lenders, appoint a successor Administrative Agent, which successor Administrative Agent shall be approved by the Parent; provided that if the resigning Administrative Agent appoints a Defaulting Lender as the successor Administrative Agent, then such Lender shall not succeed to the rights, powers and duties of the resigning Administrative Agent; provided further that if the resigning Administrative Agent shall notify the Parent and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the resigning Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents and (b) all payments, communications and determinations provided to be made by, to or through the resigning Administrative Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section.

 

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After any retiring Administrative Agent’s resignation as the Administrative Agent, the provisions of this Article VIII and Section 9.5 shall inure to its benefit (and the benefit of its sub-agents and Related Parties) as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Credit Agreement.

 

8.9            Patriot Act Notice.

 

Each Lender and the Administrative Agent (for itself and not on behalf of any other party) hereby notifies the Credit Parties that, pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Credit Party, which information includes the name and address of each Credit Party, and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Credit Party in accordance with the Patriot Act.

 

8.10            Guaranty and Borrower Matters.

 

(a)            The Lenders irrevocably authorize and direct each of the Administrative Agent and without any consent or action by any Lender:

 

(i)            to release any Guarantor from its obligations under the applicable Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder or subject to Section 6.12; provided that, it is understood and agreed that this Section 8.10(a)(i) shall not permit the release of the Parent from its obligations under the Guaranty (unless it is simultaneously ceasing to be the Parent due to a Permitted Holdco Reorganization);

 

(ii)            in the case of the Guaranty of MWV, to release the Guaranty of MWV when all Existing MWV Notes have been redeemed, repurchased or defeased (including any refinancing or replacement of such Indebtedness with Indebtedness of the Parent that is not guaranteed by MWV); and

 

(iii)            to release WRK Southeast as the Borrower in accordance with the terms of Section 9.20(d).

 

(b)            Immediately upon the occurrence of any event set forth in paragraph (a) of this Section 8.10, the applicable Guaranty shall automatically be released.

 

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(c)            In connection with a release pursuant to this Section 8.10, the Administrative Agent shall promptly execute and deliver to the applicable Credit Party, at the Borrower’s expense, all documents that the applicable Credit Party shall reasonably request to evidence such release. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor (or, if applicable, WRK Southeast) from its obligations under the Guaranty (or, if applicable, obligations as the Borrower under this Credit Agreement and the other Credit Documents) pursuant to this Section 8.10; provided, however, that the Administrative Agent may not decline to release any guarantee (or, if applicable, WRK Southeast) pursuant to this Section 8.10 due to the absence of any such confirmation.

 

8.11            Withholding.

 

To the extent required by any applicable law (as determined in good faith by the Administrative Agent), the Administrative Agent may withhold from any payment to any Lender under any Credit Document an amount equal to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been indemnified by the Credit Parties and without limiting or expanding the obligation of the Credit Parties to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties, additions to Tax or interest thereon, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Credit Document against any amount due to the Administrative Agent under this Section 8.11. The agreements in this Section 8.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement.

 

8.12            Certain ERISA Matters.

 

Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent and the Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true:

 

(i)            such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement;

 

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(ii)            the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement;

 

(iii)            (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement; or

 

(iv)            such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

 

In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement or any documents related hereto or thereto).

 

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8.13            Erroneous Payments.

 

(a)Each Lender and any other party hereto hereby severally agrees that if (i) the Administrative Agent notifies (which such notice shall be conclusive absent manifest error) such Lender (or an Affiliate of a Lender) or any other Person that has received funds from the Administrative Agent or any of its Affiliates, either for its own account or on behalf of a Lender (each such recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion that any funds received by such Payment Recipient were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) or (ii) any Payment Recipient receives any payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware was transmitted or received in error or by mistake (in whole or in part) then, in each case, an error in payment shall be presumed to have been made (any such amounts specified in clauses (i) or (ii) of this Section 8.13(a), whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise; individually and collectively, an “Erroneous Payment”), then, in each case, such Payment Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous Payment; provided that nothing in this Section shall require the Administrative Agent to provide any of the notices specified in clauses (i) or (ii) above. Each Payment Recipient agrees that it shall not assert any right or claim to any Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payments, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.

 

(b)Without limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii) above, it shall promptly notify the Administrative Agent in writing of such occurrence.

 

(c)In the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and upon demand from the Administrative Agent such Payment Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment on its behalf to), promptly, but in all events no later than one Business Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency so received, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the Overnight Rate.

 

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(d)In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate of a Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return Deficiency”), then at the sole discretion of the Administrative Agent and upon the Administrative Agent’s written notice to such Lender, such Lender shall be deemed to have made a cashless assignment of the full face amount of the portion of its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) to the Administrative Agent or, at the option of the Administrative Agent, the Administrative Agent’s applicable lending affiliate in an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) plus any accrued and unpaid interest on such assigned amount, without further consent or approval of any party hereto and without any payment by the Administrative Agent or its applicable lending affiliate as the assignee of such Erroneous Payment Deficiency Assignment. The parties hereto acknowledge and agree that (1) any assignment contemplated in this clause (d) shall be made without any requirement for any payment or other consideration paid by the applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall govern in the event of any conflict with the terms and conditions of Section 9.6 and (3) the Administrative Agent may reflect such assignments in the Register without further consent or action by any other Person.

 

(e)Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent (1) shall be subrogated to all the rights of such Payment Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all amounts at any time owing to such Payment Recipient under any Credit Document, or otherwise payable or distributable by the Administrative Agent to such Payment Recipient from any source, against any amount due to the Administrative Agent under this Section 8.13 or under the indemnification provisions of this Agreement, (y) the receipt of an Erroneous Payment by a Payment Recipient shall not for the purpose of this Agreement be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Credit Party Obligations owed by the Borrower or any other Credit Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from or on behalf of the Borrower or any other Credit Party for the purpose of making a payment on the Credit Party Obligations and (z) to the extent that an Erroneous Payment was in any way or at any time credited as payment or satisfaction of any of the Credit Party Obligations, the Credit Party Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had never been received.

 

(f)Each party’s obligations under this Section 8.13 shall survive the resignation or replacement of the Administrative Agent or any transfer of right or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Credit Party Obligations (or any portion thereof) under any Credit Document.

 

(g)Nothing in this Section 8.13 will constitute a waiver or release of any claim of the Administrative Agent hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.

 

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Article IX

 

MISCELLANEOUS

 

9.1            Amendments and Waivers.

 

Neither this Credit Agreement, nor any of the other Credit Documents, nor any terms hereof or thereof may be amended, supplemented, waived or modified except in accordance with the provisions of this Section. The Required Lenders may, or, with the written consent of the Required Lenders, the Administrative Agent may, from time to time, (a) enter into with the Credit Parties written amendments, supplements or modifications hereto and to the other Credit Documents for the purpose of adding any provisions to this Credit Agreement or the other Credit Documents or changing in any manner the rights of the Lenders or of the Credit Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders may specify in such instrument, any of the requirements of this Credit Agreement or the other Credit Documents or any Default or Event of Default and its consequences; provided that no such waiver and no such amendment, waiver, supplement, modification or release shall:

 

(i)            reduce the amount or extend the scheduled date of maturity of any Loan or Note or any installment thereon, or reduce the stated rate of any interest or fee payable hereunder (except in connection with a waiver of interest at the increased post-default rate) or extend the scheduled date of any payment thereof or increase the amount or extend the expiration date of any Lender’s or Voting Participant’s Commitment, in each case without the written consent of each Lender directly affected thereby; or

 

(ii)            amend, modify or waive any provision of this Section 9.1 or reduce the percentage specified in the definition of Required Lenders without the written consent of each Lender directly affected thereby; or

 

(iii)            amend, modify or waive any provision of Article VIII without the written consent of the then Administrative Agent; or

 

(iv)            release all or substantially all of the Guarantors from their obligations under the Guaranty (other than as permitted hereunder) or all or substantially all of the value of the Guaranty provided by all of the Guarantors, without the written consent of all the Lenders; or

 

(v)            amend, modify or waive any provision of the Credit Documents requiring consent, approval or request of the Required Lenders or all Lenders, without the written consent of the Required Lenders or of all Lenders as appropriate; or

 

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(vi)            amend or modify the definition of “Credit Party Obligations” to delete or exclude any obligation or liability or any Person described therein without the written consent of each Lender directly affected thereby; or

 

(vii)            amend, modify or waive the order in which Credit Party Obligations are paid in Section 2.15(b) or (c) without the written consent of each Lender directly affected thereby; or

 

(viii)            subordinate the Commitments and/or Loans to any other Indebtedness without the written consent of all Lenders; or

 

(ix)            the Administrative Agent (and, if applicable, the Parent) may, without the consent of any Lender, enter into amendments or modifications to this Agreement or any of the other Credit Documents or enter into additional Credit Documents in order to implement any Benchmark Replacement or any Conforming Changes or otherwise effectuate the terms of Section 2.17 in accordance with the terms of Section 2.17; or

 

(x)            amend, modify or waive any provision of Section 9.7 without the written consent of all the Lenders;

 

provided, further, that no amendment, waiver or consent affecting the rights or duties of the Administrative Agent under any Credit Document shall in any event be effective, unless in writing and signed by the Administrative Agent in addition to the Lenders required hereinabove to take such action. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except those affecting it referred to in clause (i) above.

 

Notwithstanding anything in any Credit Document to the contrary, under no circumstances shall any Hedging Agreement Provider or Cash Management Bank have any voting rights under the Credit Documents.

 

Any such waiver, any such amendment, supplement or modification and any such release shall apply equally to each of the Lenders and shall be binding upon the Borrower, the Lenders, the other Credit Parties, the Administrative Agent and all future holders of the Notes or Credit Party Obligations. In the case of any waiver, the Borrower, the other Credit Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the outstanding Loans and Notes and other Credit Documents, and any Default or Event of Default permanently waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.

 

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Notwithstanding any of the foregoing to the contrary, the consent of the Credit Parties shall not be required for any amendment, modification or waiver of the provisions of Article VIII (other than the provisions of Section 8.9 and Section 8.10); provided, however, that the Administrative Agent will provide written notice to the Borrower of any such amendment, modification or waiver. In addition, notwithstanding the foregoing, this Agreement and any other Credit Document may be amended by an agreement in writing entered into by the Credit Parties and the Administrative Agent to cure any ambiguity, omission, mistake, defect or inconsistency so long as, in each case, the Lenders shall have received at least five Business Days prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment.

 

In addition, notwithstanding any of the foregoing to the contrary, this Agreement may be amended with the written consent of the Administrative Agent, the Credit Parties and the Lenders providing the relevant Replacement Term Loan to permit the refinancing of all outstanding amounts under the Term Loans (“Refinanced Term Loan”) with a replacement term loan tranche denominated in U.S. Dollars (“Replacement Term Loan”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loan shall not exceed the aggregate principal amount of such Refinanced Term Loan, (b) the weighted average life to maturity of such Replacement Term Loan shall not be shorter than the weighted average life to maturity of such Refinanced Term Loan at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (c) all other terms (other than interest rate margins) applicable to such Replacement Term Loan shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loan than those applicable to such Refinanced Term Loan, except to the extent necessary to provide for covenants and other terms applicable to any period after the Latest Maturity Date in effect immediately prior to such refinancing.

 

Notwithstanding anything in this Credit Agreement to the contrary, each Lender hereby irrevocably authorizes the Administrative Agent on its behalf, and without further consent, to enter into amendments or modifications to this Agreement (including amendments to this Section 9.1) or any of the other Credit Documents or to enter into additional Credit Documents as the Administrative Agent reasonably deems appropriate in order to effectuate the terms of Section 2.3(a) or Section 2.26 (including as applicable, (1) to permit the Incremental Term Loans to share ratably in the benefits of this Credit Agreement and the other Credit Documents and (2) to include the Incremental Term Loan Commitments or outstanding Incremental Term Loans in any determination of (i) Required Lenders or (ii) similar required lender terms applicable thereto); provided that no amendment or modification shall result in any increase in the amount of any Lender’s Commitment or any increase in any Lender’s Closing Date Term Loan Commitment Percentage, in each case, without the written consent of such affected Lender.

 

Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above, (A) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein solely with respect to approving the terms of any such bankruptcy reorganization plan and (B) the Required Lenders may consent to allow a Credit Party to use cash collateral in the context of a bankruptcy or insolvency proceeding.

 

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The Borrower shall be permitted to replace with a replacement financial institution acceptable to the Administrative Agent (such consent not to be unreasonably withheld or delayed) any Lender that fails to consent to any proposed amendment, modification, termination, waiver or consent with respect to any provision hereof or of any other Credit Document that requires the unanimous approval of all of the Lenders, the approval of all of the Lenders affected thereby or the approval of a class of Lenders, in each case in accordance with the terms of this Section 9.1, so long as the consent of the Required Lenders (or, in the case of any proposed amendment, modification, termination, waiver or consent that requires the approval of a class of Lenders, of Lenders holding a majority in interest of the outstanding Loans and unused Commitments in respect of such class) shall have been obtained with respect to such amendment, modification, termination, waiver or consent; provided that (1) such replacement does not conflict with any Requirement of Law, (2) the replacement financial institution shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (3) the replacement financial institution shall approve the proposed amendment, modification, termination, waiver or consent and together with all other replacement financial institutions is sufficient to pass the proposed amendment, modification, termination, waiver or consent, (4) the Borrower shall be liable to such replaced Lender under Section 2.20 if any Term SOFR Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (5) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 9.6 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein), (6)  the Borrower shall pay to the replaced Lender all additional amounts (if any) required pursuant to Section 2.18, 2.19 or 2.21, as the case may be, (7) the Borrower provides at least three (3) Business Days’ prior notice to such replaced Lender, and (8) any such replacement shall not be deemed to be a waiver of any rights that the Credit Parties, the Administrative Agent or any other Lender shall have against the replaced Lender. In the event any replaced Lender fails to execute the agreements required under Section 9.6 in connection with an assignment pursuant to this Section 9.1, the Borrower may, upon two (2) Business Days’ prior notice to such replaced Lender, execute such agreements on behalf of such replaced Lender. A Lender shall not be required to be replaced if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such replacement cease to apply.

 

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9.2            Notices.

 

(a)            All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by facsimile or other electronic communications as provided below), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made (a) when delivered by hand, (b) when transmitted via facsimile to the number set out herein, (c) the day following the day on which the same has been delivered prepaid (or pursuant to an invoice arrangement) to a reputable national overnight air courier service, or (d) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid, in each case addressed as follows in the case of the Borrower, the other Credit Parties, the Administrative Agent, and the Lenders, or to such other address as may be hereafter notified by the respective parties hereto and any future holders of the Notes and Credit Party Obligations:

 

if to any of the Credit Parties

 

Smurfit Kappa Investments Limited
Beech Hill, Clonskeagh, Dublin 4, Ireland
Attention:      Emer Murnane
E-mail address:      [              ]

Telephone:      [              ]

with a copy to: WestRock Company
1000 Abernathy Road NE

Atlanta, GA 30328
Attention:      Chief Financial Officer and Secretary
Telecopier:      [              ]
Telephone:      [              ]

 

if to the Administrative Agent:

 

CoBank, ACB
6340 S. Fiddlers Green Circle

Greenwood Village, CO 80111
Attention:      Credit Information Services

Telecopier:     (303) 224-6101

E-mail address:      CIServices@cobank.com

 

With a copy to:

 

CoBank, ACB
6340 S. Fiddlers Green Circle
Greenwood Village, CO 80111
Attention:        Rob Prickett

Telephone:      [              ]

E-mail address:  [              ]

 

If to any Lender:      To the address set forth on the Register

 

(b)            Notices and other communications to the Lenders or the Administrative Agent hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent. The Administrative Agent or the Credit Parties may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Notwithstanding the foregoing, notices, requests and demands delivered pursuant to the requirements of Article II shall be deemed to have been duly given or made when transmitted via e-mail to the e-mail address of the Administrative Agent set forth in Section 9.2(a).

 

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Unless the Administrative Agent otherwise prescribe, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

 

9.3            No Waiver; Cumulative Remedies.

 

No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

9.4            Survival of Representations and Warranties.

 

All representations and warranties made hereunder and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Credit Agreement and the Notes and the making of the Loans; provided that all such representations and warranties shall terminate on the date upon which all Credit Party Obligations (other than contingent indemnity obligations) have been paid in full.

 

9.5            Payment of Expenses.

 

(a)            Costs and Expenses. The Credit Parties shall pay (i) all reasonable, documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent) in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Credit Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by the Administrative Agent and each Lender (including the fees, charges and disbursements of counsel for any of the Administrative Agent or Lenders), and all fees and time charges for attorneys who may be employees of any of the Administrative Agent or Lenders, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Credit Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Credit Documents or Loans.

 

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(b)            Indemnification by the Credit Parties. The Credit Parties shall indemnify the Administrative Agent (and any sub-agent thereof) and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, penalties, damages, liabilities and related expenses (including the fees, charges and disbursements of one firm of counsel for all such Indemnitees, taken as a whole, and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Parent of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions)) for such affected Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Credit Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Credit Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or Release or threat of Release of Hazardous Substances on, at, under or from any property owned, leased or operated by any Credit Party or any of its Subsidiaries, or any liability under Environmental Law related in any way to any Credit Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Credit Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or (2) a claim brought by a Credit Party or any Subsidiary against such Indemnitee for material breach in bad faith of such Indemnitee’s obligations hereunder or (B) result from a proceeding that does not involve an act or omission by a Credit Party or any of its Affiliates and that is brought by an Indemnitee against any other Indemnitee (other than claims against any arranger, bookrunner or agent hereunder in its capacity or in fulfilling its roles as an arranger, bookrunner or agent hereunder or any similar role with respect to the credit facilities hereunder). Notwithstanding the foregoing, this Section 9.5(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.

 

(c)            Reimbursement by Lenders. To the extent that the Credit Parties for any reason fail to indefeasibly pay any amount required under subsections (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party thereof, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought and based on the aggregate principal amount of all Loans and unused Commitments then outstanding) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party thereof acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The agreements in this Section 9.5(c) shall survive the termination of this Credit Agreement and payment of the Notes and all other amounts payable hereunder.

 

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(d)            Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the Credit Parties shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the transmission of any information or other materials through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby.

 

(e)            Payments. All amounts due under this Section shall be payable promptly/not later than five (5) days after demand therefor.

 

9.6            Successors and Assigns; Participations; Purchasing Lenders.

 

(a)            Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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(b)            Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:

 

(i)            Minimum Amounts.

 

(A)in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

 

(B)in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment Agreement, as of the Trade Date) shall not be less than $1,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Parent otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that the Parent shall be deemed to have given its consent ten (10) Business Days after the date written notice thereof has been delivered by the assigning Lender (through the Administrative Agent) of an assignment unless it shall object thereto by written notice to the Administrative Agent prior to such tenth (10th) Business Day.

 

(ii)            Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Classes on a non-pro rata basis.

 

(iii)            Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

 

(A)the consent of the Parent (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided, that the Parent shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; and

 

(B)the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of a Term Loan or an Incremental Term Loan Commitment to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund.

 

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(iv)            Assignment Agreement. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 (unless waived by the Administrative Agent in its sole discretion) and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

 

(v)            No Assignment to a Credit Party. No such assignment shall be made to any Credit Party or any of Credit Party’s Affiliates or Subsidiaries.

 

(vi)            No Assignment to Natural Persons and Disqualified Institutions. No such assignment shall be made to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person) or a Disqualified Institution on the most recent list of Disqualified Institutions made available to the Lenders at the request of the Parent prior to the date of such assignment.

 

Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment Agreement, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.18 and 9.5 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.

 

The Administrative Agent shall not have any responsibility or liability for monitoring the list or identities of, or enforcing provisions relating to, Disqualified Institutions.

 

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(c)            Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in Denver, Colorado a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, in the absence of manifest error, and the Credit Parties, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and, with respect to itself, any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

(d)            Participations. Any Lender may at any time, without the consent of, or notice to, the Credit Parties or the Administrative Agent, sell participations to any Person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person) or any Credit Party or any Credit Party’s Affiliates or Subsidiaries or any Disqualified Institution on the most recent list of Disqualified Institutions made available to the Lenders at the request of the Parent prior to the date of such assignment) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Credit Parties, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.

 

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that affects such Participant. Subject to Section 9.6(e), the Credit Parties agree that each Participant shall be entitled to the benefits of Sections 2.19 and 2.21 (subject to the requirements and limitations of such Sections and Section 2.23 and it being understood that a Participant shall be required to deliver the documentation required under Section 2.21(d) to only the participating Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 9.6(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.7 as though it were a Lender, provided such Participant agrees to be subject to Section 2.16 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and related interest amounts) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive (absent manifest error) and such Lender (and the Borrower, to the extent that the Participant requests payment from the Borrower) shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. The portion of the Participant Register relating to any Participant requesting payment from the Borrower under the Credit Documents shall be made available to the Borrower upon reasonable request. Except as provided in the preceding sentence, a Lender shall not be required to disclose its Participant Register to the Borrower or any other Person except to the extent required in connection with a Tax audit or inquiry to establish that the Loans hereunder are in registered form for U.S. federal income tax purposes.

 

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Notwithstanding the preceding paragraph, any Participant that is a Farm Credit Lender that (i) has purchased a participation in a minimum amount of $7,000,000, (ii) has been designated as a “Voting Participant” in a notice (a “Voting Participant Notice”) sent by the relevant Lender to the Administrative Agent and (iii) receives, prior to becoming a “Voting Participant,” the consent of the Administrative Agent and the Parent (each such consent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a Lender pursuant to an assignment in accordance with clause (b)) (a “Voting Participant”), shall be entitled to vote as if such Voting Participant were a Lender on all matters subject to a vote by the Lenders and the voting rights of the selling Lender shall be correspondingly reduced, on a U.S. Dollar-for-U.S. Dollar basis. Each Voting Participant Notice shall include, with respect to each Voting Participant, the information that would be included by a prospective Lender in an Assignment Agreement. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant in Schedule 2.1(a) hereto shall be a Voting Participant without delivery of a Voting Participant Notice and without the prior written consent of the Parent and the Administrative Agent. The selling Lender and the Voting Participant shall notify the Administrative Agent and the Borrower within three (3) Business Days of any termination, reduction or increase of the amount of, such participation. The Credit Parties and the Administrative Agent shall be entitled to conclusively rely on information contained in Voting Participant Notices and all other notices delivered pursuant hereto. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any assignee or participant of such Voting Participant that is not itself a Voting Participant.

 

(e)            Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Sections 2.19 and 2.21 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent, except to the extent that the entitlement to a greater payment results from a change in law after the date such Participant became a participant.

 

(f)            Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

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9.7            Adjustments; Set-off.

 

(a)            If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower or any other Credit Party against any and all of the obligations of the Borrower or such Credit Party now or hereafter existing under this Agreement or any other Credit Document to such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Credit Document and although such obligations of the Borrower or such Credit Party may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or its Affiliates may have. Each Lender agrees to notify the Parent and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

(b)            If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the applicable Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:

 

(i)            if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

 

(ii)            the provisions of this subsection shall not be construed to apply to (A) any payment made by a Credit Party pursuant to and in accordance with the express terms of this Agreement or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to any Credit Party or any Subsidiary thereof (as to which the provisions of this subsection shall apply).

 

(c)            Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.

 

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9.8            Table of Contents and Section Headings.

 

The table of contents and the Section and subsection headings herein are intended for convenience only and shall be ignored in construing this Credit Agreement.

 

9.9            Counterparts; Electronic Execution.

 

(a)            This Credit Agreement may be executed by one or more of the parties to this Credit Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same agreement.

 

(b)            The words “execution,” “signed,” “signature,” and words of like import in any Assignment Agreement shall be deemed to include electronic signatures 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 or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

9.10            Severability.

 

Any provision of this Credit Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

9.11            Integration.

 

This Credit Agreement, the other Credit Documents and the Farm Credit Equity Documents represent the agreement of the Credit Parties, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent, the Credit Parties or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Credit Documents.

 

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9.12            Governing Law.

 

THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS (EXCEPT AS OTHERWISE PROVIDED THEREIN) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

9.13            Consent to Jurisdiction and Service of Process.

 

The Borrower and each other Credit Party and each other party hereto irrevocably and unconditionally submits, for itself and its property, with respect to this Credit Agreement, any Note or any of the other Credit Documents and all judicial proceedings in respect thereof to the exclusive jurisdiction of the courts of the State of New York in New York County in the Borough of Manhattan or, if under applicable law exclusive jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York (and appellate courts thereof), and, by execution and delivery of this Credit Agreement, the Borrower and the other Credit Parties (i) accepts, for itself and in connection with its properties, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be bound by any final judgment rendered thereby in connection with this Credit Agreement, any Note or any other Credit Document from which no appeal has been taken or is available; (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; and (iii) agrees that it will not bring or support any action, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any person in any way relating to this Credit Agreement, any Note or any other Credit Document in any forum other than the Supreme Court of the State of New York in New York County in the Borough of Manhattan or, if under applicable law exclusive jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York (and appellate courts thereof). The Borrower and the other Credit Parties irrevocably agrees that all service of process in any such proceedings in any such court may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to it at its address set forth in Section 9.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto, such service being hereby acknowledged by the Borrower and the other Credit Parties to be effective and binding service in every respect. Each of the Credit Parties, the Administrative Agent and the Lenders irrevocably waives any objection, including any objection to the laying of venue based on the grounds of forum non conveniens which it may now or hereafter have to the bringing of any such action or proceeding in any such jurisdiction.

 

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9.14            Confidentiality.

 

Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and other representatives who shall maintain the confidential nature of such Information, (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process (in which case the Administrative Agent or such Lender shall promptly notify the Parent in advance to the extent lawfully permitted to do so and practicable), (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder, under any other Credit Document, Guaranteed Hedging Agreement or Guaranteed Cash Management Agreement or any action or proceeding relating to this Agreement, any other Credit Document, Guaranteed Hedging Agreement or Guaranteed Cash Management Agreement or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (g) to (i) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Credit Party and its obligations, (ii) an investor or prospective investor in securities issued by an Approved Fund that also agrees that Information shall be used solely for the purpose of evaluating an investment in such securities issued by the Approved Fund, (iii) a trustee, collateral manager, servicer, backup servicer, noteholder or secured party in connection with the administration, servicing and reporting on the assets serving as collateral for securities issued by an Approved Fund, or (iv) a nationally recognized rating agency that requires access to information regarding the Credit Parties, the Loans and Credit Documents in connection with ratings issued in respect of securities issued by an Approved Fund (in each case, it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential), (h) with the consent of the Parent or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Credit Parties that is not, to the Administrative Agent’s or Lender’s knowledge, subject to a confidentiality obligation to the Parent or any of its Affiliates with respect to such Information. For purposes of this Section, “Information” means all information received from any Credit Party or any Subsidiary thereof relating to any Credit Party or any Subsidiary thereof or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by any Credit Party or any Subsidiary thereof; provided that, in the case of information received from a Credit Party or any Subsidiary thereof after the Closing Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

9.15            Acknowledgments.

 

The Borrower and the other Credit Parties each hereby acknowledges that:

 

(a)            it has been advised by counsel in the negotiation, execution and delivery of each Credit Document;

 

(b)            neither the Administrative Agent nor any Lender has any fiduciary relationship with or duty to the Borrower or any other Credit Party arising out of or in connection with this Credit Agreement and the relationship between the Administrative Agent and the Lenders, on one hand, and the Borrower and the other Credit Parties, on the other hand, in connection herewith is solely that of debtor and creditor;

 

(c)            the Administrative Agent, each Lender and their respective Affiliates may have economic interests that conflict with those of the Credit Parties, their stockholders and/or their Affiliates; and

 

(d)            no joint venture exists among the Lenders or among the Credit Parties and the Lenders.

 

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9.16            Waivers of Jury Trial.

 

THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.

 

9.17            Judgment Currency.

 

If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Credit Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of each Credit Party in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under the other Credit Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender from any Credit Party in the Agreement Currency, such Credit Party agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to such Credit Party (or to any other Person who may be entitled thereto under applicable law).

 

9.18            Subordination of Intercompany Debt.

 

Each Credit Party agrees that all intercompany Indebtedness among Credit Parties (the “Intercompany Debt”) is subordinated in right of payment, to the prior payment in full of all Credit Party Obligations. Notwithstanding any provision of this Agreement to the contrary, so long as no Event of Default has occurred and is continuing, the Credit Parties may make and receive payments with respect to the Intercompany Debt to the extent otherwise permitted by this Agreement; provided, that in the event of and during the continuation of any Event of Default, no payment shall be made by or on behalf of any Credit Party on account of any Intercompany Debt other than payments to the Borrower. In the event that any Credit Party other than the Borrower receives any payment of any Intercompany Debt at a time when such payment is prohibited by this Section 9.18, such payment shall be held by such Credit Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to, the Administrative Agent.

 

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9.19            Acknowledgment and Consent to Bail-In of Affected Financial Institutions.

 

Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)            the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

 

(b)            the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i)            a reduction in full or in part or cancellation of any such liability;

 

(ii)            a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or

 

(iii)            the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

 

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9.20            Farm Credit Equities.

 

(a)            So long as (i) a Farm Credit Lender is a Lender or Voting Participant hereunder and (ii) such Farm Credit Lender has notified the Borrower that the Borrower is eligible to receive patronage distributions directly from such Farm Credit Lender or one of its Affiliates on account of the Loans made (or participated in) by such Farm Credit Lender hereunder, the Borrower will acquire (and such Farm Credit Lender will make available to the Borrower for purchase) equity in such Farm Credit Lender or one of its Affiliates in such amounts and at such times as such Farm Credit Lender may require in accordance with such Farm Credit Lender’s or its Affiliates’ bylaws and capital plan or similar documents (as each may be amended from time to time), provided that the maximum amount of equity that the Borrower may be required to purchase in such Farm Credit Lender or its Affiliate in connection with the portion of the Loans made by such Farm Credit Lender shall not exceed the maximum amount permitted by the applicable bylaws, capital plan and related documents (x) as in effect (and in the form provided to the Borrower) on the Closing Date or (y) in the case of a Farm Credit Lender that becomes a Lender or Voting Participant as a result of an assignment or sale of participation, as in effect (and in the form provided to the Borrower) at the time of the closing of the related assignment or sale of participation. CoBank confirms delivery to the Borrower, and the Borrower acknowledges receipt, of the documents from CoBank as of the Closing Date (and will upon reasonable request, and subject to the Borrower’s consent to such assignment or sale of a participation by such Farm Credit Lender pursuant to Section 9.6(b), acknowledge receipt of any similar documents delivered to the Borrower by a Farm Credit Lender that becomes a Lender or Voting Participant as a result of an assignment or sale of a participation after the Closing Date; provided that such Farm Credit Lender confirms delivery of such documents to the Borrower) (the “Farm Credit Equity Documents”), which describe the nature of the stock and/or other equities in a Farm Credit Lender or its Affiliate required to be acquired by the Borrower in connection with the Loans made (or participated in) by such Farm Credit Lender (the “Farm Credit Equities”), as well as applicable capitalization requirements, and the Borrower agrees to be bound by the terms thereof. CoBank acknowledges and agrees that the amount of the Farm Credit Equities of CoBank acquired by the Borrower on or prior to the Closing Date satisfies the requirements of this Section 9.20 in respect of the Closing Date Term Loan Commitments as of the Closing Date.

 

(b)            Each party hereto acknowledges that each Farm Credit Lender’s (or its Affiliate’s) bylaws, capital plan and similar documents (as each may be amended from time to time) shall govern (x) the rights and obligations of the parties with respect to the Farm Credit Equities and any patronage refunds or other distributions made on account thereof or on account of the Borrower’s patronage with such Farm Credit Lender or its Affiliate, (y) the Borrower’s eligibility for patronage distributions from such Farm Credit Lender or its Affiliate (in the form of Farm Credit Equities and cash) and (z) patronage distributions, if any, in the event of a sale of a participation interest. Each Farm Credit Lender reserves the right to assign or sell participations in all or any part of its Commitments or outstanding Loans hereunder on a non-patronage basis in accordance with Section 9.6(b); provided that if the Parent’s consent to such assignment or sale of a participation by such Farm Credit Lender is required pursuant to Section 9.6(b) or Section 9.6(d), as applicable, the parties hereto agree that, solely with respect to the Parent’s ability to reasonably withhold consent to such transfer because of an expected reduction in patronage distributions to the Borrower (it being understood and agreed that the Parent may have another basis for reasonably withholding consent to such transfer), (A) if the transferring Farm Credit Lender has not delivered a Farm Credit Lender Transfer Certificate (as defined below) to the Borrower, then the Parent may withhold its consent to such assignment or sale in its sole discretion (and in such case, the Parent shall be deemed to have acted reasonably), and (B) if the transferring Farm Credit Lender has delivered a Farm Credit Lender Transfer Certificate to the Borrower, then the Parent may not withhold its consent to such assignment or sale (and any such withholding of consent shall be deemed unreasonable). For purposes hereof, “Farm Credit Lender Transfer Certificate” means a certificate executed by an officer of the transferring Farm Credit Lender and certifying to the Borrower that such transferring Farm Credit Lender has used commercially reasonable efforts to consummate the relevant assignment or sale or a participation with another entity that would be expected to make patronage distributions to the Borrower on a going forward basis that are consistent with (or better than) those that the Borrower could reasonably have expected to have received from such transferring Farm Credit Lender.

 

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(c)            Each party hereto acknowledges that each Farm Credit Lender or its Affiliate has a statutory lien pursuant to the Farm Credit Act of 1971 (as may be amended from time to time) on all Farm Credit Equities of such Person that the Borrower may now own or hereafter acquire, which statutory lien shall be for such Farm Credit Lender’s (or its Affiliate’s) sole and exclusive benefit. The Farm Credit Equities of a particular Farm Credit Lender or its Affiliate shall not constitute security for the Credit Party Obligations due to any other Lender. To the extent that any of the Credit Documents create a Lien on the Farm Credit Equities of a Farm Credit Lender or its Affiliate or on patronage accrued by such Farm Credit Lender or its Affiliate for the account of the Borrower (including, in each case, proceeds thereof), such Lien shall be for such Farm Credit Lender’s (or its Affiliate’s) sole and exclusive benefit and shall not be subject to pro rata sharing hereunder. Neither the Farm Credit Equities nor any accrued patronage shall be offset against the Credit Party Obligations except that, in the event of an Event of Default, a Farm Credit Lender may elect, solely at its discretion, to apply the cash portion of any patronage distribution or retirement of equity to amounts owed to such Farm Credit Lender under this Agreement, whether or not such amounts are currently due and payable. The Borrower acknowledges that any corresponding tax liability associated with such application is the sole responsibility of the Borrower. No Farm Credit Lender or its Affiliate shall have an obligation to retire the Farm Credit Equities of such Farm Credit Lender or Affiliate upon any Event of Default, Default or any other default by the Borrower or any other Credit Party, or at any other time, either for application to the Credit Party Obligations or otherwise.

 

(d)            For so long as any Loans remain outstanding, the Borrower agrees to maintain ownership of the mills and assets that were the subject of the investments referred to in the definition of “Investment Purpose” (or similar assets reasonably acceptable to CoBank); provided that, notwithstanding the foregoing, (i) WRK Southeast may (without additional consent from the Administrative Agent or any Lender) transfer its Dublin, Georgia mill to another Wholly-Owned Subsidiary (whether newly formed or previously existing), so long as such Subsidiary has signed a joinder agreement to become the Borrower (effective as of the date it acquires the Dublin, Georgia mill) in a form reasonably acceptable to the Administrative Agent and otherwise has satisfied all applicable requirements for a successor Borrower pursuant to Section 6.4 and (ii) effective immediately after the transfer of the Dublin, Georgia mill in accordance with clause (i) of this Section 9.20(d) (and the effectiveness of the joinder agreement signed by the new Borrower), WRK Southeast shall be automatically (and without additional consent from the Administrative Agent or any Lender) released as the Borrower and, thereafter, shall not constitute the Borrower for any purpose of this Agreement or any other Credit Document.

 

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9.21            Most Favored Lender Provisions.

 

If at any time the Facilities Agreement or any other Financing Document (as defined in the Facilities Agreement), or the documentation for any replacement credit facilities therefor, includes (a) representations and warranties, covenants or events of default (including related definitions) in favor of a Financing Party (as defined in the Facilities Agreement), or lender under any such replacement credit facilities, that are not provided for in this Agreement or the other Credit Documents, (b) representations and warranties, covenants or events of default (including related definitions) in favor of a Financing Party (as defined in the Facilities Agreement), or lender under any such replacement credit facilities, that are more restrictive than the same or similar provisions provided for in this Agreement and the other Credit Documents and/or (c) requirements for the credit facilities under the Facilities Agreement to be secured by collateral or guaranteed by Subsidiaries of the Parent that are not already Guarantors (any or all of the foregoing, collectively, the “Most Favored Lender Provisions”) (in the case of each of the Most Favored Lender Provisions, other than any differences between the Facilities Agreement, and the other Financing Documents (as defined in the Facilities Agreement), on the one hand, and this Agreement and the other Credit Documents, on the other hand, existing as of the Second Amendment Effective Date (or otherwise consistent with such differences)), then (i) such Most Favored Lender Provisions shall immediately and automatically be deemed incorporated into this Agreement and the other Credit Documents as if set forth fully herein and therein, mutatis mutandis, and no such incorporated provision may thereafter be waived, amended or modified except pursuant to the provisions of Section 9.1, and (ii) the Borrower and the Guarantors shall promptly, and in any event within five (5) days after entering into any such Most Favored Lender Provisions, so advise the Administrative Agent in writing. Thereafter, upon the request of the Required Lenders, the Borrower and the Guarantors shall enter into an amendment to this Agreement and, if applicable, the other Credit Documents evidencing the incorporation of such Most Favored Lender Provisions, it being agreed that any failure to make such request or to enter into any such amendment shall in no way qualify or limit the incorporation described in clause (i) of the immediately preceding sentence. For the avoidance of doubt, the guarantees by such additional Guarantors under the Credit Documents and the rights and obligations of the parties under such guarantees shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

 

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9.22            Amendment and Restatement. The parties hereto agree that, on the Closing Date, the following shall be deemed to occur automatically, without further action by any party hereto: (a) the Existing Credit Agreement shall be deemed to be amended and restated in its entirety pursuant to this Agreement and (b) all references in the other Credit Documents to the Existing Credit Agreement shall be deemed to refer without further amendment to this Agreement. The parties hereto further acknowledge and agree that this Agreement constitutes an amendment to the Existing Credit Agreement made under and in accordance with the terms of Section 9.1 of the Existing Credit Agreement, and nothing herein shall be construed as a substitution or novation of the Credit Party Obligations outstanding under the Existing Credit Agreement or the other Credit Documents (as defined in the Existing Credit Agreement), all of which shall remain in full force and effect, except as modified hereby.

 

Article X

 

GUARANTY OF BORROWER OBLIGATIONS

 

10.1            The Guaranty.

 

In order to induce the Lenders to enter into this Credit Agreement, any Hedging Agreement Provider to enter into any Guaranteed Hedging Agreement and any Cash Management Bank to enter into any Guaranteed Cash Management Agreement and to extend credit hereunder and thereunder and in recognition of the direct benefits to be received by the Guarantors from the Extensions of Credit hereunder, under any Guaranteed Hedging Agreement and under any Guaranteed Cash Management Agreement, each of the Guarantors hereby agrees with the Administrative Agent and the Lenders as follows: such Guarantor hereby unconditionally and irrevocably jointly and severally guarantees as primary obligor and not merely as surety the full and prompt payment when due, whether upon maturity, by acceleration or otherwise, of any and all Credit Party Obligations. If any or all of Credit Party Obligations become due and payable hereunder or under any Guaranteed Hedging Agreement or under any Guaranteed Cash Management Agreement, each Guarantor unconditionally promises to pay such Credit Party Obligations to the Administrative Agent, the Lenders, the Hedging Agreement Providers, the Cash Management Banks or their respective order, on demand, together with any and all reasonable expenses which may be incurred by the Administrative Agent or the Lenders in collecting any of such Credit Party Obligations.

 

Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the obligations of a Guarantor shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, federal or provincial law relating to fraudulent conveyances or transfers) then the obligations of each such Guarantor hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including the Bankruptcy Code).

 

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10.2            Bankruptcy.

 

Additionally, each of the Guarantors unconditionally and irrevocably guarantees jointly and severally the payment of any and all Credit Party Obligations to the Lenders, any Cash Management Bank and any Hedging Agreement Provider whether or not due or payable by the Borrower upon the occurrence of any of the events specified in Section 7.1(g), and unconditionally promises to pay such Credit Party Obligations to the Administrative Agent for the account of the Lenders, to any such Cash Management Bank and to any such Hedging Agreement Provider, or order, on demand, in lawful money of the United States upon any such occurrence. Each of the Guarantors further agrees that to the extent that the Borrower or a Guarantor shall make a payment or a transfer of an interest in any property to the Administrative Agent, any Lender, any Cash Management Bank or any Hedging Agreement Provider, which payment or transfer or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, or otherwise is avoided, and/or required to be repaid to the Borrower or a Guarantor, the estate of the Borrower or a Guarantor, a trustee, receiver or any other party under any bankruptcy law, state, provincial or federal law, common law or equitable cause, then to the extent of such avoidance or repayment, the obligation or part thereof intended to be satisfied shall be revived and continued in full force and effect as if said payment had not been made.

 

10.3            Nature of Liability.

 

The liability of each Guarantor hereunder is exclusive and independent of any security for or other guaranty of the Credit Party Obligations whether executed by any such Guarantor, any other guarantor or by any other party, and no Guarantor’s liability hereunder shall be affected or impaired by (a) any direction as to application of payment by the Borrower or by any other party, or (b) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or of any other party as to the Credit Party Obligations, or (c) any payment on or in reduction of any such other guaranty or undertaking, or (d) any dissolution, termination or increase, decrease or change in personnel by the Borrower, or (e) any payment made to the Administrative Agent, any Lender, any Cash Management Bank or any Hedging Agreement Provider on the Credit Party Obligations which the Administrative Agent, such Lender, such Cash Management Bank or such Hedging Agreement Provider repays the Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding.

 

10.4            Independent Obligation.

 

The obligations of each Guarantor hereunder are independent of the obligations of any other Guarantor or the Borrower, and a separate action or actions may be brought and prosecuted against each Guarantor whether or not action is brought against any other Guarantor or the Borrower and whether or not any other Guarantor or the Borrower is joined in any such action or actions.

 

10.5            Authorization.

 

Each of the Guarantors authorizes the Administrative Agent, each Lender, each Cash Management Bank and each Hedging Agreement Provider, without notice or demand (except as shall be required by applicable statute and cannot be waived), and without affecting or impairing its liability hereunder, from time to time to (a) renew, compromise, extend, increase, accelerate or otherwise change the time for payment of, or otherwise change the terms of the Credit Party Obligations or any part thereof in accordance with this Agreement, any Guaranteed Cash Management Agreement and any Guaranteed Hedging Agreement, as applicable, including any increase or decrease of the rate of interest thereon, (b) take and hold security from any Guarantor or any other party for the payment of the Guaranty under this Article X or the Credit Party Obligations and exchange, enforce waive and release any such security, (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent and the Lenders in their discretion may determine and (d) release or substitute any one or more endorsers, Guarantors, Borrower or other obligors.

 

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10.6            Reliance.

 

It is not necessary for the Administrative Agent, the Lenders, any Cash Management Bank or any Hedging Agreement Provider to inquire into the capacity or powers of the Borrower or the officers, directors, members, partners or agents acting or purporting to act on its behalf, and any Credit Party Obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.

 

10.7            Waiver.

 

(a)            Each of the Guarantors waives any right (except as shall be required by applicable statute and cannot be waived) to require the Administrative Agent, any Lender, any Cash Management Bank or any Hedging Agreement Provider to (i) proceed against the Borrower, any other guarantor or any other party, (ii) proceed against or exhaust any security held from the Borrower, any other guarantor or any other party, or (iii) pursue any other remedy in the Administrative Agent’s, any Lender’s, any Cash Management Bank’s or any Hedging Agreement Provider’s power whatsoever. Each of the Guarantors waives any defense based on or arising out of any defense of the Borrower, any other guarantor or any other party other than payment in full of the Credit Party Obligations (other than contingent indemnity obligations), including any defense based on or arising out of (i) the disability of the Borrower, any other Guarantor or any other party, (ii) the unenforceability of the Credit Party Obligations or any part thereof from any cause, (iii) the cessation from any cause of the liability of the Borrower other than payment in full of the Credit Party Obligations of the Borrower (other than contingent indemnity obligations), (iv) any amendment, waiver or modification of the Credit Party Obligations, (v) any substitution, release, exchange or impairment of any security for any of the Credit Party Obligations, (vi) any change in the corporate existence or structure of the Borrower or any other Guarantor, (vii) any claims or rights of set off that such Guarantor may have, and/or (viii) any Requirement of Law or order of any Governmental Authority affecting any term of the Credit Party Obligations. The Administrative Agent may, at its election, foreclose on any security held by the Administrative Agent by one or more judicial or nonjudicial sales (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Administrative Agent or any Lender may have against the Borrower or any other party, or any security, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Credit Party Obligations of the Borrower have been paid in full and the Commitments have been terminated. Each of the Guarantors waives any defense arising out of any such election by any of the Administrative Agent or Lenders, even though such election operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of the Guarantors against the Borrower or any other party or any security.

 

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(b)            Each of the Guarantors waives all presentments, demands for performance, protests and notices, including notices of nonperformance, notice of protest, notices of dishonor, notices of acceptance of the Guaranty under this Article X, and notices of the existence, creation or incurring of new or additional Credit Party Obligations. Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Credit Party Obligations and the nature, scope and extent of the risks which such Guarantor assumes and incurs hereunder, and agrees that neither the Administrative Agent nor any Lender shall have any duty to advise such Guarantor of information known to it regarding such circumstances or risks.

 

(c)            Each of the Guarantors hereby agrees it will not exercise any rights of subrogation which it may at any time otherwise have as a result of the Guaranty under this Article X (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise) to the claims of the Lenders, any Cash Management Bank or any Hedging Agreement Provider (collectively, the “Other Parties”) against the Borrower or any other guarantor of the Credit Party Obligations owing to the Lenders, such Cash Management Bank or such Hedging Agreement Provider and all contractual, statutory or common law rights of reimbursement, contribution or indemnity from any Other Party which it may at any time otherwise have as a result of the Guaranty under this Article X until such time as the Credit Party Obligations shall have been paid in full and the Commitments have been terminated. Each of the Guarantors hereby further agrees not to exercise any right to enforce any other remedy which the Administrative Agent, the Lenders, any Cash Management Bank or any Hedging Agreement Provider now have or may hereafter have against any Other Party, any endorser or any other guarantor of all or any part of the Credit Party Obligations and any benefit of, and any right to participate in, any security or collateral given to or for the benefit of the Lenders, the Cash Management Banks and/or the Hedging Agreement Providers to secure payment of the Credit Party Obligations until such time as the Credit Party Obligations (other than contingent indemnity obligations) shall have been paid in full and the Commitments have been terminated.

 

10.8            Limitation on Enforcement.

 

The Lenders, the Cash Management Bank and the Hedging Agreement Providers agree that the Guaranty under this Article X may be enforced only by the action of the Administrative Agent acting upon the instructions of the Required Lenders and that no Lender, Cash Management Bank or Hedging Agreement Provider shall have any right individually to seek to enforce or to enforce the Guaranty under this Article X, it being understood and agreed that such rights and remedies may be exercised by the Administrative Agent for the benefit of the Lenders under the terms of this Credit Agreement. The Lenders, the Cash Management Banks and the Hedging Agreement Providers further agree that the Guaranty under this Article X may not be enforced against any director, officer, employee or stockholder of the Guarantors.

 

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10.9            Confirmation of Payment.

 

The Administrative Agent and the Lenders will, upon request after payment of the Credit Party Obligations which are the subject of the Guaranty under this Article X, confirm to the Borrower, the Guarantors or any other Person that such Credit Party Obligations have been paid, subject to the provisions of Section 10.2.

 

10.10            Keepwell.

 

Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Credit Party to honor all of its obligations under the Guaranty under this Article X in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.10 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.10, or otherwise under the Guaranty under this Article X, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the termination of this Agreement or the release of such Guarantor in accordance with Section 8.11. Each Qualified ECP Guarantor intends that this Section 10.10 constitute, and this Section 10.10 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

10.11            Guaranty Limitations; England.

 

Each Guarantor’s obligations and liabilities under this Article X or under any other guaranty or indemnity provision in a Credit Document will not extend to include any obligation or liability that would constitute unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006 or any equivalent and applicable provisions under laws applicable to any relevant Guarantor.

 

10.12            Guaranty Limitations; Ireland.

 

The obligations and liabilities under this Article X or under any other guarantee or indemnity provision in a Credit Document does not apply to any liability to the extent that it would result in or constitute unlawful financial assistance within the meaning of section 82 of the Irish Companies Act (or any analogous provision of any other applicable law) or a breach of section 239 of the Irish Companies Act (or any analogous provision of any other applicable law).

 

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10.13            Guaranty Limitations; US.

 

(a)            Notwithstanding anything to the contrary contained in this Agreement or in any other Credit Document, the maximum liability of each Guarantor under this Article X shall in no event exceed an amount equal to the greatest amount that would not render such Guarantor’s obligations hereunder and under any other Credit Document subject to avoidance under the Bankruptcy Code or to being set aside, avoided or annulled under any applicable Bankruptcy Code or any applicable US state fraudulent transfer or conveyance law (each a “Fraudulent Transfer Law”), in each case subject to applicable law and after giving effect to:

 

(i)            all other liabilities of such Guarantor, contingent or otherwise, that are relevant under such Fraudulent Transfer Law (specifically excluding, however, any liabilities of such Guarantor in respect of intercompany indebtedness to the Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder); and

 

(ii)            the value as assets of such Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Law) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor pursuant to applicable law.

 

(b)            Without prejudice to any of the other provisions of this Agreement or any other Credit Document, each Party agrees that, in the event any payment or distribution is made on any date by a Guarantor under this Article X, each such Guarantor shall be entitled to be indemnified by each other Guarantor in an amount equal to such payment, in each case multiplied by a fraction of which the numerator shall be the net worth of the contributing Guarantor and the denominator shall be the aggregate net worth of all Guarantors.

 

(c)            Notwithstanding any other provision of this Agreement or any other Credit Document to the contrary, no obligation of the Borrower or any other Domestic Subsidiary that is a Credit Party shall be (or be deemed) guaranteed by, or otherwise supported directly or indirectly by the assets of, any Person that is (i) a CFC, (ii) a FSHCO, (iii) a Subsidiary of a CFC or a FSHCO, and (iv) another member of the Group to the extent its guarantee could, as determined by the Credit Parties’ Agent (acting reasonably and in good faith), result in material adverse US tax consequences for any member of the Group or any of its direct or indirect owners (provided, however, that, absent a change of applicable law after the Second Amendment Effective Date, the parties agree that this clause (iv) shall not apply to any member of the Group as of the Second Amendment Effective Date); provided, that, in no event shall any Guarantor cease to constitute a Guarantor solely as a result of this Section 10.13(c) via any amalgamation, demerger, merger, consolidation or corporate reconstruction unless such amalgamation, demerger, merger, consolidation or corporate reconstruction (x) is for a bona fide business purpose and (y) is permitted pursuant to Section 6.6. For the avoidance of doubt, as of the Second Amendment Effective Date, the Credit Parties (after giving effect to the Joinder Agreement dated as of July 1, 2024 and effective on the Second Amendment Effective Date) represent and warrant that this Section 10.13(d) does not impact any Guaranty provided by any Second Amendment Effective Date Guarantor as of the Second Amendment Effective Date (after giving effect to the Joinder Agreement dated as of July 1, 2024 and effective on the Second Amendment Effective Date).

 

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For the purposes of this Section 10.13(c):

 

“CFC” means a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is owned (within the meaning of Section 958(a) or 958(b) of the Code) by a member of the Group that is a “United States Shareholder” (as defined in Section 951(b) of the Code); and

 

“FSHCO” means an entity substantially all the assets of which consist of equity interests (or equity interests and indebtedness) of one or more CFCs.

 

(d)            Each Guarantor and each Credit Party (by its acceptance of the guarantee under this Article X) hereby confirms that it is its intention that the guarantee under this Article X shall not constitute a fraudulent transfer or conveyance for the purposes of any bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act of the United States or any similar federal, state or foreign law.

 

[Signature Pages Omitted]

 

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Schedule 1.1(a)(i)

 

Existing MWV Notes

 

(see attached)

 

 

 

 

Schedule 2.1(a)

 

Lenders, Voting Participants and Commitments

 

(see attached)

 

 

 

 

Schedule 9.2

 

Lending Offices

 

(see attached)

 

 

 

Exhibit 10.13

 

Amended and Restated Commercial Paper Dealer Agreement

 

Guaranteed 4(a)(2) Program

 

Among

 

 

WRKCo Inc., as Issuer,

 

 

WestRock RKT, LLC, WestRock MWV, LLC

WestRock Company, Smurfit WestRock US Holdings Corporation, Smurfit WestRock plc, Smurfit Kappa Treasury Unlimited Company, Smurfit Kappa Acquisitions Unlimited Company, Smurfit Kappa Group plc, Smurfit Kappa Investments Limited, Smurfit Kappa Treasury Funding Designated Activity Company, and Smurfit International B.V., (collectively, the “Guarantors”),

 

 

and

 

 

[●], as Dealer

 

 

Concerning Notes to be issued pursuant to an Amended and Restated Issuing and Paying Agency Agreement dated as of [●] among the Issuer, the Guarantors and U.S. Bank Trust Company, National Association, as Issuing and Paying Agent

 

 

Dated as of [●]

 

 

 

 

Amended and Restated Commercial Paper Dealer Agreement

 

4(a)(2) Program; Guaranteed

 

This amended and restated commercial paper dealer agreement (as amended, supplemented or modified from time to time, the “Agreement”) sets forth the understandings among the Issuer, the Guarantors and the Dealer, each named on the cover page hereof, in connection with the issuance and sale by the Issuer of its short-term promissory notes (the “Notes”) through the Dealer. On December 7, 2018, the Issuer, the Dealer and certain of the Guarantors entered into a commercial paper dealer agreement, which is hereby being amended and restated in its entirety.

 

The Guarantors have agreed unconditionally and irrevocably to guarantee payment in full of the principal of and interest (if any) on all such Notes of the Issuer, pursuant to an amended and restated guarantee, dated the date hereof, in the form of Exhibit D hereto (as amended, supplemented or modified from time to time, the “Guarantee”).

 

Certain terms used in this Agreement are defined in Section 6 hereof.

 

The Addendum to this Agreement, and any Annexes or Exhibits described in this Agreement or such Addendum, are hereby incorporated into this Agreement and made fully a part hereof.

 

1.            Offers, Sales and Resales of Notes.

 

1.1While (i) the Issuer has and shall have no obligation to sell the Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuer, the parties hereto agree that in any case where the Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the Issuer, such Notes will be purchased or sold by the Dealer in reliance on the representations, warranties, covenants and agreements of the Issuer and the Guarantors contained herein or made pursuant hereto and on the terms and conditions and in the manner provided herein.

 

1.2So long as this Agreement shall remain in effect, and in addition to the limitations contained in Section 1.7 hereof, neither the Issuer nor any Guarantor shall, without the consent of the Dealer, offer, solicit or accept offers to purchase, or sell, any Notes except (a) in transactions with one or more dealers which may from time to time after the date hereof become dealers with respect to the Notes by executing with the Issuer and the Guarantors one or more agreements which contain provisions substantially identical to those contained in Section 1 of this Agreement, of which the Issuer and such Guarantor hereby undertake to provide the Dealer prompt notice or (b) in transactions with the other dealers listed on the Addendum hereto, which are executing agreements with the Issuer and the Guarantors which contain provisions substantially identical to Section 1 of this Agreement contemporaneously herewith. In no event shall the Issuer or any Guarantor offer, solicit or accept offers to purchase, or sell, any Notes directly on its own behalf in transactions with persons other than broker-dealers as specifically permitted in this Section 1.2.

 

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1.3The Notes shall be in a minimum denomination of $250,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer, shall have a maturity not exceeding 397 days from the date of issuance and may have such terms as are specified in Exhibit C hereto, the Private Placement Memorandum, a pricing supplement or as otherwise agreed upon by the applicable purchaser and the Issuer. The Notes shall not contain any provision for extension, renewal or automatic “rollover.”

 

1.4The authentication and issuance of, and payment for, the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement, and the Notes shall be either individual physical certificates or book-entry notes evidenced by one or more master notes (each, a “Master Note”) registered in the name of The Depository Trust Company (“DTC”) or its nominee, in the form or forms annexed to or as otherwise provided in the Issuing and Paying Agency Agreement.

 

1.5If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate or interest rate index and margin (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer’s services hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of the Issuing and Paying Agency Agreement and payment for such Note shall be made by the purchaser thereof, either directly or through the Dealer, to the Issuing and Paying Agent, for the account of the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a purchaser shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds to the Dealer against its return of the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer and the Guarantors agree, jointly and severally, to reimburse the Dealer on an equitable basis for the Dealer’s loss of the use of such funds for the period such funds were credited to the Issuer’s account.

 

1.6The Dealer, the Issuer and the Guarantors hereby establish and agree to observe the following procedures in connection with offers, sales and subsequent resales or other transfers of the Notes:

 

(a)       Offers and sales of the Notes by or through the Dealer shall be made only to: (i) investors reasonably believed by the Dealer to be Qualified Institutional Buyers or Institutional Accredited Investors and (ii) non-bank fiduciaries or agents that will be purchasing Notes for one or more accounts, each of which is reasonably believed by the Dealer to be a Qualified Institutional Buyer or an Institutional Accredited Investor.

 

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(b)       Resales and other transfers of the Notes by the holders thereof shall be made only in accordance with the restrictions in the legend described in clause (e) below.

 

(c)       No general solicitation or general advertising shall be used in connection with the offering of the Notes. Without limiting the generality of the foregoing, without the prior written approval of the Dealer, neither the Issuer nor any Guarantor shall issue any press release, make any other statement to any member of the press making reference to the Notes, the offer or sale of the Notes, the Guarantee or this Agreement or place or publish any “tombstone” or other advertisement relating to the Notes, the offer or sale of the Notes or the Guarantee. To the extent permitted by applicable securities laws, the Issuer and each Guarantor, as applicable, shall (i) omit the name of the Dealer from any publicly available filing by the Issuer or such Guarantor that makes reference to the Notes, the offer or sale of the Notes, the issuance of the Guarantee or this Agreement, (ii) not include a copy of this Agreement in any such filing or as an exhibit thereto, and (iii) redact the Dealer’s name and any contact or other information that could identify the Dealer from any agreement or other information included in such filing. For the avoidance of doubt, the Issuer shall not post the Private Placement Memorandum on a website without the consent of the Dealer and each other dealer or placement agent, if any, for the Notes.

 

(d)       No sale of Notes to any one purchaser shall be for less than $250,000 principal or face amount, and no Note shall be issued in a smaller principal or face amount. If the purchaser is a non-bank fiduciary acting on behalf of others, each person for whom such purchaser is acting must purchase at least $250,000 principal or face amount of Notes.

 

(e)       Offers and sales of the Notes shall be subject to the restrictions described in the legend appearing in Exhibit A hereto. A legend substantially to the effect of such Exhibit A shall appear as part of the Private Placement Memorandum used in connection with offers and sales of Notes hereunder, as well as on each individual certificate representing a Note and each Master Note representing book-entry Notes offered and sold pursuant to this Agreement.

 

(f)        The Dealer shall furnish or make available or shall have furnished or made available to each purchaser of Notes for which it has acted as the dealer a copy of the then-current Private Placement Memorandum unless such purchaser has previously been furnished or had made available to it a copy of the Private Placement Memorandum as then in effect. The Private Placement Memorandum shall expressly state that any person to whom Notes are offered shall have an opportunity to ask questions of, and receive information from, the Issuer, the Guarantors and the Dealer and shall provide the names, addresses and telephone numbers of the persons from whom information regarding the Issuer and the Guarantors may be obtained.

 

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(g)       The Issuer agrees for the benefit of the Dealer and each of the holders and prospective purchasers from time to time of the Notes that, the Issuer will furnish, upon request and at their expense, to the Dealer and to holders and prospective purchasers of Notes information required by Rule 144A(d)(4)(i) in compliance with Rule 144A(d).

 

(h)       In the event that any Note offered or to be offered by the Dealer would be ineligible for resale under Rule 144A, the Issuer shall promptly notify the Dealer (by telephone, confirmed in writing) of such fact and shall promptly prepare and deliver to the Dealer an amendment or supplement to the Private Placement Memorandum describing the Notes that are ineligible, the reason for such ineligibility and any other relevant information relating thereto.

 

(i)         The Issuer and the Guarantors represent that neither the Issuer nor any Guarantor is currently issuing commercial paper in the United States market in reliance upon the exemption provided by Section 3(a)(3) of the Securities Act. The Issuer and the Guarantors agree that, if the Issuer or any Guarantor shall issue commercial paper after the date hereof in reliance upon such exemption (a) the proceeds from the sale of the Notes will be segregated from the proceeds of the sale of any such commercial paper by being placed in a separate account; (b) the Issuer and the Guarantors will institute appropriate corporate procedures to ensure that the offers and sales of notes issued by the Issuer or any or all of the Guarantors, as the case may be, pursuant to the Section 3(a)(3) exemption are not integrated with offerings and sales of Notes hereunder; and (c) the Issuer and the applicable Guarantors will comply with each of the requirements of Section 3(a)(3) of the Securities Act in selling commercial paper or other short-term debt securities other than the Notes in the United States.

 

1.7Each of the Issuer and the Guarantors hereby represents and warrants to the Dealer, in connection with offers, sales and resales of Notes, as follows:

 

(a)       The Issuer and the Guarantors hereby confirm to the Dealer that (except as permitted by Section 1.6(i) hereof) within the preceding six months neither the Issuer nor any Guarantor nor any person other than the Dealer or the other dealers referred to in Section 1.2 hereof acting on behalf of the Issuer or any Guarantor has offered or sold any Notes, or any substantially similar security of the Issuer or any Guarantor (including, without limitation, medium-term notes issued by the Issuer or any Guarantor which could be integrated with the Notes for Securities Act purposes), to, or solicited offers to buy any such security from, any person other than the Dealer or the other dealers referred to in Section 1.2 hereof. The Issuer and the Guarantors also agree that (except as permitted by Section 1.6(i) hereof), as long as the Notes are being offered for sale by the Dealer and the other dealers referred to in Section 1.2 hereof as contemplated hereby and until at least six months after the offering of Notes hereunder has been terminated, neither the Issuer nor any Guarantor nor any person other than the Dealer or the other dealers referred to in Section 1.2 hereof (except as contemplated by Section 1.2 hereof) will offer the Notes or any substantially similar security of the Issuer for sale to, or solicit offers to buy any such security from, any person other than the Dealer or the other dealers referred to in Section 1.2 hereof, it being understood that such agreement is made with a view to bringing the offer and sale of the Notes within an exemption provided by the Securities Act and shall survive any termination of this Agreement. Each of the Issuer and the Guarantors hereby represents and warrants that it has not taken or omitted to take, and will not take or omit to take, any action that would cause the offering and sale of Notes hereunder to be integrated with any other offering of securities, whether such offering is made by the Issuer or a Guarantor or some other party or parties.

 

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(b)       The Issuer represents and agrees that the proceeds of the sale of the Notes are not currently contemplated to be used for the purpose of buying, carrying or trading securities within the meaning of Regulation T and the interpretations thereunder by the Board of Governors of the Federal Reserve System. In the event that the Issuer determines to use such proceeds for the purpose of buying, carrying or trading securities, whether in connection with an acquisition of another company or otherwise, the Issuer shall give the Dealer at least five business days’ prior written notice to that effect. The Issuer shall also give the Dealer prompt notice of the actual date that it commences to purchase securities with the proceeds of the Notes. Thereafter, in the event that the Dealer purchases Notes as principal and does not resell such Notes on the day of such purchase, to the extent necessary to comply with Regulation T and the interpretations thereunder, the Dealer will sell such Notes either (i) only to offerees it reasonably believes to be Qualified Institutional Buyers or to Qualified Institutional Buyers it reasonably believes are acting for other Qualified Institutional Buyers, in each case in accordance with Rule 144A or (ii) in a manner which would not cause a violation of Regulation T and the interpretations thereunder.

 

2.             Representations and Warranties of the Issuer and the Guarantors.

 

Each of the Issuer and the Guarantors, as applicable, represents and warrants as to itself that:

 

2.1The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.

 

2.2(a) Each of the Guarantors is duly organized or incorporated (as applicable) and validly existing under the laws of the jurisdiction of its incorporation or formation and has all the requisite power and authority to execute, deliver and perform its obligations under the Guarantee, this Agreement and the Issuing and Paying Agency Agreement.

 

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(b) Each of Smurfit WestRock US Holdings Corporation, WestRock Company, WestRock MWV, LLC and WestRock RKT, LLC is in good standing under the laws of the jurisdiction of its incorporation or formation.

 

2.3This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and the Guarantors and constitute legal, valid and binding obligations of the Issuer and the Guarantors enforceable against the Issuer and the Guarantors in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), including to the extent that the indemnification and contribution provisions of this Agreement and the Issuing and Paying Agency Agreement may be unenforceable.

 

2.4The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

 

2.5The Guarantee has been duly authorized, executed and delivered by the Guarantors and constitutes the legal, valid and binding obligation of the Guarantors enforceable against the Guarantors in accordance with its terms, subject to applicable bankruptcy, insolvency, examinership, reorganization, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

 

2.6The offer and sale of the Notes and the issuance of the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended.

 

2.7The Notes and the Guarantee will rank at least pari passu in priority of payment with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantors, respectively.

 

2.8No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.

 

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2.9Neither the execution and delivery of this Agreement, the Guarantee and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or the Guarantors, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or any Guarantor, or (ii) violate or result in a breach or a default under (a) any of the terms of the charter documents, constitutional documents or by-laws of the Issuer or any Guarantor, (b) any contract or instrument to which the Issuer or any Guarantor is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any Guarantor is subject or by which it or its property is bound, which violation, breach or default with respect to clause (b) would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer and the Guarantors, taken as a whole, or that would affect the ability of the Issuer or any Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, as applicable.

 

2.10There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any Guarantor threatened, against or affecting the Issuer or  any Guarantor or any of their respective subsidiaries which would reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer and the Guarantors, taken as a whole, or the ability of the Issuer or any Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, as applicable.

 

2.11Neither the Issuer nor any Guarantor is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

2.12Neither the Private Placement Memorandum (excluding Dealer Information) nor the Company Information contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

2.13Neither the Issuer, any Guarantor nor any of their respective subsidiaries nor, to the knowledge of the Issuer or any Guarantor, any director, officer, agent, employee or affiliate of the Issuer, any Guarantor or any of their respective subsidiaries is aware of, or has taken any action, directly or indirectly, that would result in, a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), the Bribery Act of 2010 of the United Kingdom (as amended, and the rules and regulations thereunder, the “UK Bribery Act”) or any other applicable anti-bribery or anti-corruption law, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, the UK Bribery Act or any other applicable anti-bribery or anti-corruption law and the Issuer, its subsidiaries and, to the knowledge of the Issuer and the Guarantors, their respective affiliates, have conducted their businesses in compliance with the FCPA, the UK Bribery Act, and other applicable anti-bribery and anti-corruption laws and have instituted and maintain policies and procedures designed to ensure continued compliance therewith.

 

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2.14The operations of the Issuer, the Guarantors and their respective subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer, any Guarantor or any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Issuer and the Guarantors, threatened.

 

2.15Neither the Issuer, any Guarantor nor any of their respective subsidiaries nor, to the knowledge of the Issuer or any Guarantor, any director, officer, agent, employee, affiliate or representative of the Issuer, any Guarantor or any of their respective subsidiaries, is currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the Bureau of Industry and Security of the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Issuer, any Guarantor or any of their respective subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions; and none of the Issuer, any Guarantor or any of their respective subsidiaries will, directly or indirectly, use the proceeds of the sale of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person, (i) to fund any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.

 

2.16Each Guarantor will receive financial benefits from the issuance of the Notes by the Issuer and the issuance by such Guarantor of the Guarantee in respect of the Notes.

 

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2.17Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by each of the Issuer and the Guarantors, as applicable, to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the Guarantors set forth in this Section 2 remain true and correct on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date, have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer or the Guarantors, taken as a whole, that would affect the ability of the Issuer or any Guarantor to perform their respective obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, which has not been disclosed to the Dealer in writing and (iv) neither the Issuer nor any Guarantor is in default of any of their respective obligations hereunder or under the Notes, the Guarantee or the Issuing and Paying Agency Agreement.

 

2.18Under the laws of Ireland and the Netherlands, neither any Guarantor nor any of their respective revenues, assets or properties has any right of immunity from service of process or from the jurisdiction of competent courts of Ireland, The Netherlands or the United States or the State of New York (as applicable) in connection with any suit, action or proceeding, attachment prior to judgment, attachment in aid of execution of a judgment or execution of a judgment or from any other legal process with respect to its obligations under this Agreement, the Issuing and Paying Agency Agreement, the Guarantee, the Master Note or the Notes.

 

2.19There is no stamp or documentary tax or other charge imposed by any governmental agency having jurisdiction over the Issuer or any Guarantor in connection with the execution, delivery, issuance, payment, performance, enforcement or introduction into evidence in a court of Ireland or The Netherlands of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee, the Master Note or any Note.

 

2.20The choice of New York law to govern this Agreement, the Issuing and Paying Agency Agreement, the Guarantee, the Master Note and the Notes is, under the laws of Ireland and The Netherlands, a valid choice of law, and the submission by the Guarantors in Section 7.3 (b) of the Agreement to the jurisdiction of the courts of the United States District Court and the State of New York located in the Borough of Manhattan is valid and binding upon the Guarantors under the laws of Ireland and The Netherlands.

 

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2.21Any final judgment rendered in accordance with Section 7.3 in an action to enforce the obligations of any Guarantor under this Agreement, the Issuing and Paying Agency Agreement, the Guarantee, the Master Note or the Notes is capable of being enforced in the courts of Ireland and The Netherlands.

 

2.22As a condition to the admissibility in evidence of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee, the Master Note or the Notes in the courts of Ireland and The Netherlands, it is not necessary that this Agreement, the Issuing and Paying Agency Agreement, the Guarantee, the Master Note or the Notes be filed or recorded with any court or other authority.

 

3.            Covenants and Agreements of the Issuer and the Guarantors.

 

Each of the Issuer and the Guarantors, as applicable, covenants and agrees as to itself that:

 

3.1The Issuer and the Guarantors will give the Dealer prompt notice (but in any event prior to any subsequent issuance of Notes hereunder) of any amendment to, modification of or waiver with respect to, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, including a complete copy of any such amendment, modification or waiver.

 

3.2The Issuer and the Guarantors shall, whenever there shall occur any change in the condition (financial or otherwise) or operations of the Issuer or the Guarantors, taken as a whole, or any development or occurrence in relation to the Issuer or the Guarantors that would be materially adverse to holders of the Notes or potential holders of the Notes (including any downgrading or receipt of any notice of intended or potential downgrading or any review for potential change in the rating accorded any of the securities of the Issuer or the Guarantors by any nationally recognized statistical rating organization which has published a rating of the Notes), promptly, and in any event prior to any subsequent issuance of Notes hereunder, notify the Dealer (by telephone, confirmed in writing) of such change, development or occurrence; provided that, the Issuer and the Guarantors shall be deemed to have met the requirements of this Section 3.2 to the extent that the Issuer or the Guarantors have made information regarding any such change, development or occurrence publicly available through filings with the EDGAR system of the SEC or posted on the website of the Issuer or the Guarantors (so long as the Issuer or the Guarantors notify the Dealer of any such posting or filing and any such posting or filing is identified in such notice).

 

3.3The Issuer and the Guarantors shall from time to time furnish to the Dealer such publicly released information with respect to the Issuer or the Guarantors as the Dealer may reasonably request, including, without limitation, any press releases or material provided by the Issuer or the Guarantors to any national securities exchange or rating agency, regarding (i) the operations and financial condition of the Issuer or the Guarantors, (ii) the due authorization and execution of the Notes and the Guarantee, (iii) the Issuer’s ability to pay the Notes as they mature and (iv) the Guarantors’ ability to fulfill their obligations under the Guarantee; provided that, to the extent any such publicly released information is filed with the EDGAR system of the SEC or posted on the website of the Issuer or the Guarantors, such material shall be deemed to be furnished to the Dealer in accordance herewith.

 

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3.4The Issuer and each Guarantor will take all such action as the Dealer may reasonably request to ensure that each offer and each sale of the Notes will comply with any applicable state Blue Sky laws; provided, however, that neither the Issuer nor any Guarantor shall be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.

 

3.5Neither the Issuer nor any Guarantor will be in default in (i) any of its obligations under the Notes or the Guarantee, as applicable, or (ii) any material respect of any of its obligations hereunder or under the Issuing and Paying Agency Agreement, at any time that any of the Notes are outstanding.

 

3.6The Issuer shall not issue Notes hereunder until the Dealer shall have received (a) opinions of counsel to the Issuer and the Guarantors, addressed to the Dealer, reasonably satisfactory in form and substance to the Dealer, (b) a copy of the executed Issuing and Paying Agency Agreement as then in effect, (c) a copy of the executed Guarantee, (d) a copy of the resolutions adopted by the Boards of Directors of the Issuer and the Guarantors, reasonably satisfactory in form and substance to the Dealer and certified by the Secretary or similar officer of the Issuer or the Guarantors, as the case may be, authorizing execution and delivery by the Issuer and the Guarantors of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee and the Notes and consummation by the Issuer and the Guarantors of the transactions contemplated hereby and thereby, (e) in respect of each of the Issuer and the Guarantors, a certificate of its secretary, assistant secretary, director or other designated officer certifying as to (i) its organizational/constitutional documents, and attaching true, correct and complete copies thereof and (ii) the incumbency of its officers authorized to execute and deliver this Agreement, and in the case of the Issuer, the Issuing and Paying Agency Agreement and the Notes, and in the case of the Guarantors, the Guarantee and the Issuing and Paying Agency Agreement, and to take other action on behalf of the Issuer or the Guarantors, as the case may be, in connection with the transactions contemplated hereby and thereby, (f) prior to the issuance of any book-entry Notes represented by a Master Note registered in the name of DTC or its nominee, a copy of the executed Letter of Representations among the Issuer, the Guarantors, the Issuing and Paying Agent and DTC and of the executed Master Note, (g) prior to the issuance of any Notes in physical form, a copy of such form (unless attached to this Agreement or the Issuing and Paying Agency Agreement), (h) confirmation of the then current rating assigned to the Notes by each nationally recognized statistical rating organization then rating the Notes, if any, (i) a properly completed and signed IRS Form W-8 or W-9, as applicable, for the Issuer and each Guarantor, (j) all information regarding beneficial ownership required by 31 C.F.R. §1010.230, including a completed form promulgated by the Securities Industry and Financial Markets Association to facilitate compliance with the requirements of the Financial Crimes Enforcement Network, and (k) such other certificates, opinions, letters and documents as the Dealer shall have reasonably requested.

 

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3.7The Issuer and the Guarantors, jointly and severally, shall reimburse the Dealer for all of the Dealer’s reasonable out-of-pocket expenses related to this Agreement, including expenses incurred in connection with its preparation and negotiation, and the transactions contemplated hereby (including, but not limited to, the printing and distribution of the Private Placement Memorandum), and for the reasonable and documented fees and out-of-pocket expenses of the Dealer’s counsel.

 

3.8Neither the Issuer nor any Guarantor shall file a Form D (as referenced in Rule 503 under the Securities Act) at any time in respect of the offer or sale of the Notes or the Guarantee.

 

3.9Each Guarantor shall provide notice to the Dealer of the release of such Guarantor under the Guarantee, provided that such notice shall not be a condition to the termination of the obligations of the applicable Guarantor.

 

4.             Disclosure.

 

4.1The Private Placement Memorandum and its contents (other than the Dealer Information) shall be the sole responsibility of the Issuer and the Guarantors. The Private Placement Memorandum shall contain a statement expressly offering an opportunity for each prospective purchaser to ask questions of, and receive answers from, the Issuer and the Guarantors concerning the offering of Notes and to obtain relevant additional information which the Issuer possesses or can acquire without unreasonable effort or expense.

 

4.2Each of the Issuer and the Guarantors agrees to promptly furnish the Dealer the Company Information as it becomes available; provided that, the public filing of the Company Information with the EDGAR system of the Securities and Exchange Commission or the posting of the Company Information on the website of the Issuer or the Guarantors (so long as the Issuer or the Guarantors notify the Dealer that the Issuer or the Guarantors have posted such Company Information and such posting is identified in such notice) shall be deemed to satisfy the requirements of this Section 4.2, with respect to such publicly filed information.

 

4.3(a)       Each of the Issuer and the Guarantors further agrees to notify the Dealer promptly upon the occurrence of any event relating to or affecting the Issuer or any Guarantor that would cause the Company Information then in existence to include an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they are made, not misleading.

 

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(b)       In the event that the Issuer or any Guarantor gives the Dealer notice pursuant to Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it is holding in inventory, the Issuer shall promptly supplement or amend the Private Placement Memorandum so that the Private Placement Memorandum, as amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Issuer shall make such supplement or amendment available to the Dealer.

 

(c)       In the event that (i) the Issuer or any Guarantor gives the Dealer notice pursuant to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it is then holding Notes in inventory, and (iii) the Issuer or such Guarantor chooses not to promptly amend or supplement the Private Placement Memorandum in the manner described in clause (b) above, then all solicitations and sales of Notes shall be suspended until such time as the Issuer has so amended or supplemented the Private Placement Memorandum, and made such amendment or supplement available to the Dealer.

 

5.             Indemnification and Contribution.

 

5.1The Issuer and the Guarantors, jointly and severally, will indemnify and hold harmless the Dealer, and each of its affiliates, directors, officers and employees, and each person, if any, who controls the Dealer within the meaning of the Securities Act and the Exchange Act (hereinafter the “Indemnitees”) against any losses, claims, damages or liabilities (or actions in respect thereof) (each a “Claim”), imposed upon, incurred by or asserted against the Indemnitees arising out of or based upon (i) any allegation that the Private Placement Memorandum, the Company Information or any information provided by the Issuer or a Guarantor to the Dealer included (as of any relevant time) or includes an untrue statement of a material fact or omitted (as of any relevant time) or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) the breach by the Issuer or a Guarantor of any agreement, covenant or representation made in or pursuant to this Agreement. This indemnification shall not apply to the extent that the Claim arises out of or is based upon Dealer Information or, with respect to clause (ii) above only, the gross negligence, willful misconduct, bad faith or reckless disregard of duty by the Dealer in the performance of, or failure to perform, its obligations under this Agreement, as established by a final nonappealable judgment of a court of competent jurisdiction.

 

5.2Provisions relating to claims made for indemnification under this Section 5 are set forth in Exhibit B to this Agreement.

 

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5.3In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Section 5 is held to be unavailable or insufficient to hold harmless the Indemnitees, although applicable in accordance with the terms of this Section 5, the Issuer and the Guarantors, jointly and severally, shall contribute to the aggregate costs incurred by the Dealer in connection with any Claim in the proportion of the respective economic interests of the Issuer and the Guarantors, on the one hand, and the Dealer, on the other hand. The respective economic interests shall be calculated by reference to the aggregate proceeds to the Issuer of the Notes issued hereunder and the aggregate commissions and fees earned by the Dealer hereunder. If the allocation by respective economic interests provided by the preceding two sentences above is not permitted by applicable law, then the Issuer’s contribution shall be in such proportion as is appropriate to reflect not only the respective economic interests referred to above but also the relative fault of the Issuer and the Guarantors, on the one hand, and the Dealer, on the other, with respect to statements or omissions which results in such loss, claim, damage liability or expense, or action in respect thereof. The relative fault of the Issuer, the Guarantors and the Dealer shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the issuer, the Guarantors or by the Dealer and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statements or omission. Notwithstanding anything to the contrary set forth above, the contribution by the Issuer and the Guarantors in any case shall be in an amount such that the aggregate costs incurred by the Dealer do not exceed the aggregate of the commissions and fees earned by the Dealer hereunder with respect to the issue or issues of Notes to which such Claim relates.

 

6.             Definitions.

 

6.1“BHC Act Affiliate” shall have the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

 

6.2“Claim” shall have the meaning set forth in Section 5.1.

 

6.3“Company Information” at any given time shall mean the Private Placement Memorandum together with, to the extent applicable, (i) the most recent report on Form 10-K filed by Smurfit WestRock plc with the SEC and each report on Form 10-Q or 8-K filed by Smurfit WestRock plc with the SEC since the most recent Form 10-K, as applicable, (ii) the Issuer’s and the Guarantors’ most recent annual audited financial statements and each interim financial statement or report prepared subsequent thereto, if not included in item (i) above on a standalone basis or in accordance with Rule 3-10 of Regulation S-X, (iii) the Issuer’s and the Guarantors’ and their affiliates’ other publicly available recent reports, including, but not limited to, any publicly available filings or reports provided to their respective shareholders, (iv) any other information or disclosure prepared pursuant to Section 4.3 hereof and (v) any information prepared or approved by the Issuer or a Guarantor for dissemination to investors or potential investors in the Notes.

 

6.4“Covered Entity” shall mean any of the following:

 

(i)          a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

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(ii)         a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii)        a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

6.5“Current Issuing and Paying Agent” shall have the meaning set forth in Section 7.10(i).

 

6.6“Dealer Information” shall mean material concerning the Dealer provided by the Dealer in writing expressly for inclusion in the Private Placement Memorandum.

 

6.7“Default Right” shall have the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

6.8“DTC” shall mean The Depository Trust Company.

 

6.9“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended.

 

6.10“FCPA” shall have the meaning set forth in Section 2.13.

 

6.11“Foreign Guarantor” means each Guarantor organized, incorporated or formed in a country other than the United States.

 

6.12“Guarantors” shall mean the Guarantors party hereto, collectively, and “Guarantor” shall mean any of them, individually.

 

6.13“Indemnitee” shall have the meaning set forth in Section 5.1.

 

6.14“Institutional Accredited Investor” shall mean an institutional investor that is an accredited investor within the meaning of Rule 501 under the Securities Act and that has such knowledge and experience in financial and business matters that it is capable of evaluating and bearing the economic risk of an investment in the Notes, including, but not limited to, a bank, as defined in Section 3(a)(2) of the Securities Act, or a savings and loan association or other institution, as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity.

 

6.15“Issuer” shall mean WRKCo Inc., a Delaware corporation.

 

6.16“Issuing and Paying Agency Agreement” shall mean the amended and restated issuing and paying agency agreement described on the cover page of this Agreement, or any replacement thereof designated in accordance with Section 7.10, as such agreement may be amended or supplemented from time to time.

 

6.17“Issuing and Paying Agent” shall mean the party designated as such on the cover page of this Agreement, or any successor thereto or replacement thereof designated in accordance with Section 7.10.

 

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6.18“Master Note” shall mean a master note registered in the name of the DTC or its nominee.

 

6.19“Money Laundering Laws” shall have the meaning set forth in Section 2.14.

 

6.20“Non-bank fiduciary or agent” shall mean a fiduciary or agent other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or (b) a savings and loan association, as defined in Section 3(a)(5)(A) of the Securities Act.

 

6.21“Outstanding Notes” shall have the meaning set forth in Section 7.10(ii).

 

6.22“Private Placement Memorandum” shall mean offering materials prepared in accordance with Section 4 (including materials referred to therein or incorporated by reference therein, if any) provided to purchasers and prospective purchasers of the Notes, and shall include amendments and supplements thereto which may be prepared from time to time in accordance with this Agreement (other than any amendment or supplement that has been completely superseded by a later amendment or supplement).

 

6.23“Qualified Institutional Buyer” shall have the meaning assigned to that term in Rule 144A under the Securities Act.

 

6.24“Replacement” shall have the meaning set forth in Section 7.10(i).

 

6.25“Replacement Issuing and Paying Agent” shall have the meaning set forth in Section 7.10(i).

 

6.26“Replacement Issuing and Paying Agency Agreement” shall have the meaning set forth in Section 7.10(i).

 

6.27“Rule 144A” shall mean Rule 144A under the Securities Act.

 

6.28“Sanctions” shall have the meaning set forth in Section 2.15.

 

6.29“SEC” shall mean the U.S. Securities and Exchange Commission.

 

6.30“Securities Act” shall mean the U.S. Securities Act of 1933, as amended.

 

6.31“U.S. Special Resolution Regime” shall mean each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

6.32“UK Bribery Act” shall have the meaning set forth in Section 2.13.

 

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7.             General

 

7.1Unless otherwise expressly provided herein, all notices under this Agreement to parties hereto shall be in writing and shall be effective when received at the address of the respective party set forth in the Addendum to this Agreement.

 

7.2This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions.

 

7.3 (a) Each of the Issuer and each Guarantor agrees that any suit, action or proceeding brought by the Issuer or a Guarantor against the Dealer in connection with or arising out of this Agreement, the Guarantee or the Notes or the offer and sale of the Notes shall be brought solely in the United States federal courts located in the Borough of Manhattan or the courts of the State of New York located in the Borough of Manhattan. EACH OF THE DEALER, THE ISSUER AND THE GUARANTORS WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

(b) Each of the Issuer and the Guarantors hereby irrevocably accepts and submits to the non-exclusive jurisdiction of each of the aforesaid courts in personam, generally and unconditionally, for itself and in respect of its properties, assets and revenues, with respect to any suit, action or proceeding in connection with or arising out of this Agreement, the Guarantee or the Notes or the offer and sale of the Notes.

 

(c) Each Foreign Guarantor hereby irrevocably designates, appoints and empowers Smurfit Kappa Packaging LLC, with offices located at 900 S. Pine Island Road, Suite 600, Plantation, Florida 33324, as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and its properties, assets and revenues, service for any and all legal process, summons, notices and documents which may be served in any such action, suit or proceeding brought in the courts listed in Section 7.3(a) which may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts, with respect to any suit, action or proceeding in connection with or arising out of this Agreement, the Guarantee or the Notes or the offer and sale of the Notes. If for any reason such designee, appointee and agent hereunder shall cease to be available to act as such, the each Foreign Guarantor agrees to designate a new designee, appointee and agent in The City of New York on the terms and for the purposes of this Section 7.3 satisfactory to the Dealer. Each Foreign Guarantor further hereby irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by serving a copy thereof upon the agent for service of process referred to in this Section 7.3 (whether or not the appointment of such agent shall for any reason prove to be ineffective or such agent shall accept or acknowledge such service) or by mailing copies thereof by registered or certified airmail, postage prepaid, to it at its address specified in or designated pursuant to this Agreement. Each Foreign Guarantor agrees that the failure of any such designee, appointee and agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Nothing herein shall in any way be deemed to limit the ability of the holders of any Notes or the Dealer to serve any such legal process, summons, notices and documents in any other manner permitted by applicable law or to obtain jurisdiction over the undersigned or bring actions, suits or proceedings against the undersigned in such other jurisdictions, and in such other manner, as may be permitted by applicable law. Each of the Issuer and the Guarantors hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Agreement or the Notes brought in the courts listed in Section 7.3(a) and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

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(d) To the extent that a Foreign Guarantor or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding in connection with or arising out of this Agreement, the Guarantee or the Notes or the offer and sale of the Notes, from the giving of any relief in any thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceeding may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement, the Issuing and Paying Agency Agreement, the Guarantee, the Master Note or the Notes, it hereby irrevocably and unconditionally waives, and agrees for the benefit of the Dealer and any holder from time to time of the Notes not to plead or claim, any such immunity, and consents to such relief and enforcement.

 

7.4This Agreement may be terminated, at any time, by the Issuer, upon one business day’s prior notice to such effect to the Dealer, or by the Dealer upon one business day’s prior notice to such effect to the Issuer. Any such termination, however, shall not affect the obligations of the Issuer and the Guarantors under Sections 3.7, 5 or 7.3 hereof or the respective representations, warranties, agreements, covenants, rights or responsibilities of the parties made or arising prior to the termination of this Agreement.

 

7.5This Agreement is not assignable by any party hereto without the written consent of the other parties; provided, however, that the Dealer may assign its rights and obligations under this Agreement to any affiliate of the Dealer. Any purported assignment made in contravention of the immediately preceding sentence shall be null and void and of no effect whatsoever.

 

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7.6This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Each party to this Agreement agrees that the other parties may execute their counterparts of this Agreement by (i) an “electronic signature”, whether digital or encrypted, to the maximum extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Electronic Signatures and Records Act of New York, or any similar state laws based on the Uniform Electronic Transactions Act or (ii) an electronic transmission (including electronic mail in portable document format (pdf.) form), or other electronic means that reproduces an image of a manually-signed counterpart or (iii) a digital signature transmitted through DocuSign, Adobe Sign or any other secure portal for digitized signature of documents that complies with the U.S. federal ESIGN Act of 2000. Any such counterpart shall be effective to the same extent as delivery of a manually executed counterpart of this Agreement and treated as an original manually executed counterpart for all purposes of this Agreement.

 

7.7Except as provided in Section 5 with respect to non-party Indemnitees, this Agreement is for the exclusive benefit of the parties hereto, and their respective permitted successors and assigns hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever; provided, however, that Section 7.3(b), (c) and (d) and Section 7.8 are hereby specifically and expressly acknowledged to also be for the benefit of the holders from time to time of the Notes, as third-party beneficiaries.

 

7.8(a) Any payments to the Dealer hereunder or to any holder from time to time of Notes shall be in United States dollars and, except to the extent required under applicable law, shall be free of all withholding and other taxes and of all other governmental charges of any nature whatsoever imposed by the jurisdiction in which the Issuer or any Guarantor is located, as applicable, and, in each case, by any authority or agency therein or thereof having the power to tax (“Taxes”). In the event any withholding is required by law, the Issuer and the Guarantors, jointly and severally, agree to (i) pay the same and (ii) pay such additional amounts to the Dealer or any such holder which, after deduction of any such Taxes with respect to the payment of such additional amount, shall equal the amount withheld pursuant to clause (i) above; provided that, no such additional amounts shall be payable for or on account of: (1) if that Tax is imposed on or calculated by reference to the income received or franchise tax imposed on the overall net income, profits, capital or net worth of the Dealer or the holder or beneficial owner of any Note (under the law of its jurisdiction of incorporation, or if different, the jurisdiction in which that person is tax resident) or any Tax or governmental charge that would not have been so imposed but for the existence of any present or former personal or business connection between the person entitled to such payment and the Netherlands or Ireland, as the case may be, other than the mere receipt of such payment or the ownership or holding of such Note, (2) any Taxes imposed by reason of the failure of the recipient to provide customary tax forms or certifications, (3) any withholding which would not have been required but for the presentation of any Notes by the relevant holder or relevant account holder for payment on a date more than 15 days after the Maturity Date or, if applicable, the relevant Interest Payment Date (each as defined in the relevant Note) or (in either case) the date on which payment hereof is duly provided for, whichever occurs later, (4) any estate, inheritance, gift, sales, transfer, excise, or personal property tax or any similar Tax, (5) any Taxes imposed otherwise than by way of withholding or deduction from payments on or in respect of this Agreement, the Notes or the Guarantees, as applicable, or (6) any Taxes imposed in respect of any deduction or withholding required pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, any intergovernmental agreement, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code (or any law implementing such an intergovernmental agreement). The Issuer and the Guarantors, jointly and severally, will promptly pay any stamp duty or other taxes or governmental charges payable in connection with the execution, delivery, payment or performance of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee, the Master Note or the Notes and shall indemnify and hold harmless the Dealer and each holder of Notes from all liabilities arising from any failure to pay, or delay in paying, such taxes or charges.

 

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(b) Each of the Issuer and each Guarantor agrees to indemnify and hold harmless the Dealer and each holder from time to time of Notes against any loss incurred by the Dealer or such holder as a result of any judgment or order being given or made for any amount due hereunder or under the Notes or the Guarantee and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which the Dealer or such holder is able to purchase United States dollars with the amount of Judgment Currency actually received by the Dealer or such holder. The foregoing indemnity shall constitute separate and independent obligations of the Issuer and each Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.

 

7.9Each of the Issuer and each of the Guarantors acknowledges and agrees that (i) the purchase and sale, or placement, of the Notes pursuant to this Agreement, including the determination of any price for the Notes and Dealer compensation, are arm's-length commercial transactions between the Issuer and the Guarantors, on the one hand, and the Dealer, on the other, (ii) in connection therewith and with the process leading to such transactions, the Dealer is acting solely as a principal and not the agent (except to the extent explicitly set forth herein) or fiduciary of the Issuer or any Guarantor or any of their respective affiliates, (iii) the Dealer has not assumed an advisory or fiduciary responsibility in favor of the Issuer or any Guarantor or any of their respective affiliates with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Dealer has advised or is currently advising the Issuer or any Guarantors or any of their respective affiliates on other matters) or any other obligation to the Issuer or any Guarantor or any of their affiliates except the obligations expressly set forth in this Agreement, (iv) the Issuer and the Guarantors are capable of evaluating and understanding and each understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement, (v) the Dealer and its affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Issuer and/or the Guarantors and that the Dealer has no obligation to disclose any of those interests by virtue of any advisory or fiduciary relationship, (vi) the Dealer has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated hereby, and (vii) each of the Issuer and each Guarantor has consulted its own legal and financial advisors to the extent it deemed appropriate. Each of the Issuer and each Guarantor agrees that it will not claim that the Dealer has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Issuer or any Guarantor, in connection with such transactions or the process leading thereto. Any review by the Dealer of the Issuer or any Guarantor, the transactions contemplated hereby or other matters relating to such transactions shall be performed solely for the benefit of the Dealer and shall not be on behalf of the Issuer or any Guarantor. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Issuer or any Guarantor and the Dealer with respect to the issuance and sale of Notes by the Dealer. Each of the Issuer and each Guarantor hereby waives and releases, to the fullest extent permitted by law, any claims the Issuer or any Guarantor may have against the Dealer with respect to any breach or alleged breach of fiduciary duty arising out of this Agreement.

 

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7.10(i) The parties hereto agree that the Issuer and the Guarantors may, in accordance with the terms of this Section 7.10, from time to time replace the party which is then acting as Issuing and Paying Agent (the “Current Issuing and Paying Agent”) with another party (such other party, the “Replacement Issuing and Paying Agent”), and enter into an agreement with the Replacement Issuing and Paying Agent covering the provision of issuing and paying agency functions in respect of the Notes by the Replacement Issuing and Paying Agent (the “Replacement Issuing and Paying Agency Agreement”) (any such replacement, a “Replacement”).

 

(ii) From and after the effective date of any Replacement, (A) to the extent that the Issuing and Paying Agency Agreement provides that the Current Issuing and Paying Agent will continue to act in respect of Notes outstanding as of the effective date of such Replacement (the “Outstanding Notes”), then (i) the “Issuing and Paying Agent” for the Notes shall be deemed to be the Current Issuing and Paying Agent, in respect of the Outstanding Notes, and the Replacement Issuing and Paying Agent, in respect of Notes issued on or after the Replacement, (ii) all references to the “Issuing and Paying Agent” hereunder shall be deemed to refer to the Current Issuing and Paying Agent in respect of the Outstanding Notes, and the Replacement Issuing and Paying Agent in respect of Notes issued on or after the Replacement, and (iii) all references to the “Issuing and Paying Agency Agreement” hereunder shall be deemed to refer to the existing Issuing and Paying Agency Agreement, in respect of the Outstanding Notes, and the Replacement Issuing and Paying Agency Agreement, in respect of Notes issued on or after the Replacement; and (B) to the extent that the Issuing and Paying Agency Agreement does not provide that the Current Issuing and Paying Agent will continue to act in respect of the Outstanding Notes, then (i) the “Issuing and Paying Agent” for the Notes shall be deemed to be the Replacement Issuing and Paying Agent, (ii) all references to the “Issuing and Paying Agent” hereunder shall be deemed to refer to the Replacement Issuing and Paying Agent, and (iii) all references to the “Issuing and Paying Agency Agreement” hereunder shall be deemed to refer to the Replacement Issuing and Paying Agency Agreement.

 

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(iii) From and after the effective date of any Replacement, the Issuer shall not issue any Notes hereunder unless and until the Dealer shall have received: (a) a copy of the executed Replacement Issuing and Paying Agency Agreement, (b) to the extent provided to the DTC, a copy of the executed Letter of Representations among the Issuer, the Guarantors, the Replacement Issuing and Paying Agent and DTC, (c) to the extent provided to the DTC, a copy of the executed Master Note authenticated by the Replacement Issuing and Paying Agent and registered in the name of DTC or its nominee, (d) an amendment or

 

supplement to the Private Placement Memorandum describing the Replacement Issuing and Paying Agent as the Issuing and Paying Agent for the Notes, and reflecting any other changes thereto necessary in light of the Replacement so that the Private Placement Memorandum, as amended or supplemented, satisfies the requirements of this Agreement, and (e) to the extent requested by the Dealer, legal opinions of counsel to the Issuer and the Guarantors, addressed to the Dealer, in form and substance reasonably satisfactory to the Dealer.

 

7.11Notwithstanding anything to the contrary in this Agreement, the parties hereto agree that:

 

(a) In the event that the Dealer that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from the Dealer of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b) In the event that the Dealer that is a Covered Entity or a BHC Act Affiliate of the Dealer becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Dealer are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

 

7.12Upon the release of a Guarantor from its obligations under the Guarantee in accordance with the Guarantee, such Guarantor shall cease to be party to this Agreement, without any notice or action being required.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written.

  

  WRKCO INC., as Issuer
   
  By
     
    Name: M. Benjamin Haislip
    Title: Senior Vice President and Treasurer

 

 

  WestRock RKT, LLC, as Guarantor
   
  By
     
    Name: M. Benjamin Haislip
    Title: Senior Vice President and Treasurer

 

 

  WestRock MWV, LLC, as Guarantor
   
  By
     
    Name: M. Benjamin Haislip
    Title: Senior Vice President and Treasurer

 

 

  WestRock COMPANY, as Guarantor
   
  By
     
    Name: M. Benjamin Haislip
    Title: Senior Vice President and Treasurer

 

[Signature Page to Dealer Agreement]

 

 

 

  SMURFIT WESTROCK US HOLDINGS CORPORATION, as Guarantor
   
  By
     
    Name: Ken Bowles
    Title: Authorized Signatory

 

 

  SMURFIT WestRock PLC, as Guarantor
   
  By
     
    Name: Ken Bowles
    Title: Authorized Signatory

 

 

  SMURFIT KAPPA TREASURY UNLIMITED COMPANY, as Guarantor
   
  By
     
    Name: Ken Bowles
    Title: Authorized Signatory

 

 

  SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY, as Guarantor
   
  By
     
    Name: Ken Bowles
    Title: Authorized Signatory

 

[Signature Page to Dealer Agreement]

 

 

  SMURFIT KAPPA GROUP PLC, as Guarantor
   
  By
     
    Name: Ken Bowles
    Title: CFO / Attorney

 

  By
     
    Name: Gillian Carson-Callan
    Title: Company Secretary / Attorney

 

 

  SMURFIT KAPPA INVESTMENTS LIMITED, as Guarantor
   
  By
     
    Name: Ken Bowles
    Title: Authorized Signatory

 

 

  SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY, as Guarantor
   
  By
     
    Name: Ken Bowles
    Title: Authorized Signatory

 

 

  SMURFIT INTERNATIONAL B.V., as Guarantor
   
  By
     
    Name: Ken Bowles
    Title: Authorized Signatory

 

[Signature Page to Dealer Agreement]

 

 

[●],

 

as Dealer

 

by  
     
  Name:  
  Title:  

 

[Signature Page to Dealer Agreement]

 

 

Addendum

 

The following additional clauses shall apply to the Agreement and be deemed a part thereof.

 

1.             The other dealers referred to in clause (b) of Section 1.2 of the Agreement are [●] and [●].

 

2.             The following Section 3.9 is hereby added to the Agreement:

 

3.9 Without limiting any obligation of the Issuer or any Guarantor pursuant to this Agreement to provide the Dealer with credit and financial information, each of the Issuer and each Guarantor hereby acknowledges and agrees that the Dealer may share the Company Information and any other information or matters relating to the Issuer or any Guarantor or the transactions contemplated hereby with affiliates of the Dealer, and that such affiliates may likewise share information relating to the Issuer or any Guarantor or such transactions with the Dealer.

 

3.             The addresses of the respective parties for purposes of notices under Section 7.1 are as follows:

 

For the Issuer or the Guarantors:

 

Address: WRKCo Inc.
  1000 Abernathy Road NE, Atlanta, GA 30328
Attention: Ben Haislip, Senior Vice President and Treasurer
Telephone: [           ]
Email: [           ]
   
Address: Smurfit Kappa
  Beech Hill, Clonskeagh, Dublin 4, Ireland
Attention: Emer Murnane
Alma Alagic
Telephone: [           ]
[           ]
E-mail: [           ]
  [           ]

 

For the Dealer:

 

Address:

Attention:

Telephone number:

Fax number:

E-mail:

 

1

 

 

Exhibit A

 

Form of Legend for Private Placement Memorandum and Notes

 

NEITHER THE NOTES NOR THE GUARANTEE THEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS AND SALES THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED TO REPRESENT THAT (I) IT HAS BEEN AFFORDED AN OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO WRKCO INC. (THE “ISSUER”), SMURFIT WESTROCK US HOLDINGS CORPORATION, SMURFIT INTERNATIONAL B.V., SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY, SMURFIT KAPPA GROUP PLC, SMURFIT KAPPA INVESTMENTS LIMITED, SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY, SMURFIT KAPPA TREASURY UNLIMITED COMPANY, SMURFIT WESTROCK PLC, WESTROCK COMPANY, WESTROCK RKT, LLC AND WESTROCK MWV, LLC (THE “GUARANTORS”), THE NOTES AND THE GUARANTEE, (II) IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY DISTRIBUTION THEREOF AND (III) IT IS EITHER (A) AN INSTITUTIONAL INVESTOR THAT IS (1) AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a) UNDER THE ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”) AND (2) (i) PURCHASING NOTES FOR ITS OWN ACCOUNT, (ii) A BANK (AS DEFINED IN SECTION 3(A)(2) OF THE ACT) OR A SAVINGS AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION 3(A)(5)(A) OF THE ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR (iii) A FIDUCIARY OR AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN ASSOCIATION OR OTHER SUCH INSTITUTION) PURCHASING NOTES FOR ONE OR MORE ACCOUNTS EACH OF WHICH ACCOUNTS IS SUCH AN INSTITUTIONAL ACCREDITED INVESTOR; OR (B) A QUALIFIED INSTITUTIONAL BUYER (“QIB”) WITHIN THE MEANING OF RULE 144A UNDER THE ACT THAT IS ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH ACCOUNTS IS A QIB; AND THE PURCHASER ACKNOWLEDGES THAT IT IS AWARE THAT THE SELLER MAY RELY UPON THE EXEMPTION FROM THE REGISTRATION PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF SHALL ALSO BE DEEMED TO AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY (A) IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE ISSUER OR TO A PLACEMENT AGENT DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR THE NOTES (COLLECTIVELY, THE “PLACEMENT AGENTS”), NEITHER OF WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR OR A QIB, OR (3) TO A QIB IN A TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF $250,000.

 

Exhibit A-1

 

 

Exhibit B

 

Further Provisions Relating to Indemnification

 

(a)The Issuer and the Guarantors, jointly and severally, agree to reimburse each Indemnitee for all reasonable and documented out-of-pocket expenses (including reasonable fees and disbursements of one separate counsel (in addition to any local counsel in the jurisdiction in which any Claim is brought)) as they are incurred by it in connection with investigating or defending any loss, claim, damage, liability or action in respect of which indemnification may be sought under Section 5 of the Agreement (whether or not it is a party to any such proceedings).

 

(b)Promptly after receipt by an Indemnitee of notice of the existence of a Claim, such Indemnitee will, if a claim in respect thereof is to be made against the Issuer or the Guarantors, notify the Issuer and the Guarantors in writing of the existence thereof; provided that (i) the omission to so notify the Issuer or the Guarantors will not relieve the Issuer or the Guarantors from any liability which they may have hereunder unless and except to the extent they did not otherwise learn of such Claim and such failure results in the forfeiture by it of substantial rights and defenses, and (ii) the omission to so notify the Issuer or the Guarantors will not relieve the Issuer or the Guarantors from liability which they may have to an Indemnitee otherwise than on account of this indemnity agreement. In case any such Claim is made against any Indemnitee and it notifies the Issuer or the Guarantors of the existence thereof, the Issuer and the Guarantors will be entitled to participate therein, and to the extent that they may elect by written notice delivered to the Indemnitee, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee; provided that if the defendants in any such Claim include both the Indemnitee and either the Issuer or any Guarantor or both, and the Indemnitee shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Issuer or any Guarantor, neither the Issuer nor any Guarantor shall have the right to direct the defense of such Claim on behalf of such Indemnitee, and the Indemnitee shall have the right to select separate counsel reasonably satisfactory to the Issuer to assert such legal defenses on behalf of such Indemnitee. Upon receipt of notice from the Issuer or the Guarantors to such Indemnitee of the election of the Issuer and the Guarantors to assume the defense of such Claim and approval by the Indemnitee of counsel, the Issuer and the Guarantors will not be liable to such Indemnitee for expenses incurred thereafter by the Indemnitee in connection with the defense thereof (other than reasonable costs of investigation) unless (i) the Indemnitee shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that neither the Issuer nor the Guarantors shall be liable for the expenses of more than one separate counsel (in addition to any local counsel in the jurisdiction in which any Claim is brought), approved by the Dealer, representing the Indemnitee who is party to such Claim), (ii) the Issuer and the Guarantors shall not have employed counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after notice of existence of the Claim or (iii) the Issuer or a Guarantor has authorized in writing the employment of counsel for the Indemnitee. The indemnity, reimbursement and contribution obligations of the Issuer and the Guarantors hereunder shall be in addition to any other liability the Issuer or any Guarantor may otherwise have to an Indemnitee and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Issuer, each Guarantor and any Indemnitee. Each of the Issuer and each Guarantor agrees that without the Dealer’s prior written consent, it will not settle, compromise or consent to the entry of any judgment in any Claim in respect of which indemnification may be sought under the indemnification provision of the Agreement (whether or not the Dealer or any other Indemnitee is an actual or potential party to such Claim), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnitee from all liability arising out of such Claim and (ii) does not include a statement as to or an admission of fault, culpability or failure to act, by or on behalf of any Indemnitee.

 

Exhibit B-1

 

 

Exhibit C

 

Statement of Terms for Interest – Bearing Commercial Paper Notes of WRKCo Inc.

 

THE PROVISIONS SET FORTH BELOW ARE QUALIFIED TO THE EXTENT APPLICABLE BY THE TRANSACTION SPECIFIC PRIVATE PLACEMENT MEMORANDUM SUPPLEMENT (THE “SUPPLEMENT”) (IF ANY) SENT TO EACH PURCHASER AT THE TIME OF THE TRANSACTION.

 

1.General. (a) The obligations of the Issuer to which these terms apply (each a “Note”) are represented by one or more master notes issued in the name of The Depository Trust Company (“DTC”) or its nominee (each, a “Master Note”), which Master Note includes the terms and provisions for the Issuer’s Interest-Bearing Commercial Paper Notes that are set forth in this Statement of Terms, since this Statement of Terms constitutes an integral part of the Underlying Records as defined and referred to in each Master Note.

 

(b)       “Business Day” means any day other than a Saturday or Sunday that is neither a legal holiday nor a day on which banking institutions are authorized or required by law, executive order or regulation to be closed in New York City, unless otherwise specified in the Supplement.

 

2.Interest. (a) Each Note will bear interest at a fixed rate (a “Fixed Rate Note”) or at a floating rate (a “Floating Rate Note”).

 

(b)       The Supplement sent to each holder of such Note will describe the following terms: (i) whether such Note is a Fixed Rate Note or a Floating Rate Note and whether such Note is an Original Issue Discount Note (as defined below); (ii) the date on which such Note will be issued (the “Issue Date”); (iii) the Stated Maturity Date (as defined below); (iv) if such Note is a Fixed Rate Note, the rate per annum at which such Note will bear interest, if any, and the Interest Payment Dates; (v) if such Note is a Floating Rate Note, the Base Rate, the Index Maturity, the Interest Reset Dates, the Interest Payment Dates and the Spread and/or Spread Multiplier, if any (all as defined below), and any other terms relating to the particular method of calculating the interest rate for such Note; and (vi) any other terms applicable specifically to such Note. “Original Issue Discount Note” means a Note which has a stated redemption price at the Stated Maturity Date that exceeds its Issue Price by more than a specified de minimis amount and which the Supplement indicates will be an “Original Issue Discount Note”.

 

(c)       Each Fixed Rate Note will bear interest from its Issue Date at the rate per annum specified in the Supplement until the principal amount thereof is paid or made available for payment. Interest on each Fixed Rate Note will be payable on the dates specified in the Supplement (each an “Interest Payment Date” for a Fixed Rate Note) and on the Maturity Date (as defined below). Interest on Fixed Rate Notes will be computed on the basis of a 360-day year and actual days elapsed.

 

If any Interest Payment Date or the Maturity Date of a Fixed Rate Note falls on a day that is not a Business Day, the required payment of principal, premium, if any, and/or interest will be payable on the next succeeding Business Day, and no additional interest will accrue in respect of the payment made on that next succeeding Business Day.

 

Exhibit C-1

 

 

(d)       The interest rate on each Floating Rate Note for each Interest Reset Period (as defined below) will be determined by reference to an interest rate basis (a “Base Rate”) plus or minus a number of basis points (one basis point equals one-hundredth of a percentage point) (the “Spread”), if any, and/or multiplied by a certain percentage (the “Spread Multiplier”), if any, until the principal thereof is paid or made available for payment. The Supplement will designate which of the following Base Rates is applicable to the related Floating Rate Note: (a) the Commercial Paper Rate (a “Commercial Paper Rate Note”), (b) the Federal Funds Rate (a “Federal Funds Rate Note”), (c) the Prime Rate (a “Prime Rate Note”), (d) the Treasury Rate (a “Treasury Rate Note”) or (e) such other Base Rate as may be specified in such Supplement.1

 

The rate of interest on each Floating Rate Note will be reset daily, weekly, monthly, quarterly or semi-annually (the “Interest Reset Period”). The date or dates on which interest will be reset (each an “Interest Reset Date”) will be, unless otherwise specified in the Supplement, in the case of Floating Rate Notes which reset daily, each Business Day, in the case of Floating Rate Notes (other than Treasury Rate Notes) that reset weekly, the Wednesday of each week; in the case of Treasury Rate Notes that reset weekly, the Tuesday of each week; in the case of Floating Rate Notes that reset monthly, the third Wednesday of each month; in the case of Floating Rate Notes that reset quarterly, the third Wednesday of March, June, September and December; and in the case of Floating Rate Notes that reset semiannually, the third Wednesday of the two months specified in the Supplement. If any Interest Reset Date for any Floating Rate Note is not a Business Day, such Interest Reset Date will be postponed to the next day that is a Business Day, except that if such Business Day is in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day, unless otherwise specified in the Supplement. Interest on each Floating Rate Note will be payable monthly, quarterly or semiannually (the “Interest Payment Period”) and on the Maturity Date. Unless otherwise specified in the Supplement, and except as provided below, the date or dates on which interest will be payable (each an “Interest Payment Date” for a Floating Rate Note) will be, in the case of Floating Rate Notes with a monthly Interest Payment Period, on the third Wednesday of each month; in the case of Floating Rate Notes with a quarterly Interest Payment Period, on the third Wednesday of March, June, September and December; and in the case of Floating Rate Notes with a semiannual Interest Payment Period, on the third Wednesday of the two months specified in the Supplement. In addition, the Maturity Date will also be an Interest Payment Date.

 

If any Interest Payment Date for any Floating Rate Note (other than an Interest Payment Date occurring on the Maturity Date) would otherwise be a day that is not a Business Day, such Interest Payment Date shall be postponed to the next day that is a Business Day, except that if such Business Day is in the next succeeding calendar month, such Interest Payment Date shall be the immediately preceding Business Day, unless otherwise specified in the Supplement. If the Maturity Date of a Floating Rate Note falls on a day that is not a Business Day, the payment of principal and interest will be made on the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after such maturity.

 

 

1 In addition, Notes may be issued utilizing index rates other than those set forth herein, including, without limitation, SOFR, BSBY, Ameribor, and OBFR, and such index rates may be incorporated by (i) modifying this Statement of Terms through the Supplement to accommodate such alternative index rates, or (ii) expressly modifying the Statement of Terms to include such index rates.

 

Exhibit C-2

 

 

Interest payments on each Interest Payment Date for Floating Rate Notes will include accrued interest from and including the Issue Date or from and including the last date in respect of which interest has been paid, as the case may be, to, but excluding, such Interest Payment Date. On the Maturity Date, the interest payable on a Floating Rate Note will include interest accrued to, but excluding, the Maturity Date. Accrued interest will be calculated by multiplying the principal amount of a Floating Rate Note by an accrued interest factor. This accrued interest factor will be computed by adding the interest factors calculated for each day in the period for which accrued interest is being calculated. The interest factor (expressed as a decimal) for each such day will be computed by dividing the interest rate applicable to such day by 360, in the cases where the Base Rate is the Commercial Paper Rate, Federal Funds Rate or Prime Rate, or by the actual number of days in the year, in the case where the Base Rate is the Treasury Rate. The interest rate in effect on each day will be (i) if such day is an Interest Reset Date, the interest rate with respect to the Interest Determination Date (as defined below) pertaining to such Interest Reset Date, or (ii) if such day is not an Interest Reset Date, the interest rate with respect to the Interest Determination Date pertaining to the next preceding Interest Reset Date, subject in either case to any adjustment by a Spread and/or a Spread Multiplier.

 

The “Interest Determination Date” where the Base Rate is the Commercial Paper Rate will be the second Business Day next preceding an Interest Reset Date. The Interest Determination Date where the Base Rate is the Federal Funds Rate or the Prime Rate will be the Business Day next preceding an Interest Reset Date. The Interest Determination Date where the Base Rate is the Treasury Rate will be the day of the week in which such Interest Reset Date falls when Treasury Bills are normally auctioned. Treasury Bills are normally sold at auction on Monday of each week, unless that day is a legal holiday, in which case the auction is held on the following Tuesday or the preceding Friday. If an auction is so held on the preceding Friday, such Friday will be the Interest Determination Date pertaining to the Interest Reset Date occurring in the next succeeding week. The Interest Determination Date where the Base Rate is a rate other than a specific rate set forth in this paragraph will be as set forth in the Supplement.

 

The “Index Maturity” is the period to maturity of the instrument or obligation from which the applicable Base Rate is calculated.

 

The “Calculation Date,” where applicable, shall be the earlier of (i) the tenth calendar day following the applicable Interest Determination Date or (ii) the Business Day preceding the applicable Interest Payment Date or Maturity Date.

 

Exhibit C-3

 

 

All times referred to herein reflect New York City time, unless otherwise specified.

 

The Issuer shall specify in writing to the Issuing and Paying Agent which party will be the calculation agent (the “Calculation Agent”) with respect to the Floating Rate Notes. The Calculation Agent will provide the interest rate then in effect and, if determined, the interest rate which will become effective on the next Interest Reset Date with respect to such Floating Rate Note to the Issuing and Paying Agent as soon as the interest rate with respect to such Floating Rate Note has been determined and as soon as practicable after any change in such interest rate.

 

All percentages resulting from any calculation on Floating Rate Notes will be rounded to the nearest one hundred-thousandth of a percentage point, with five-one millionths of a percentage point rounded upwards. For example, 9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655). All dollar amounts used in or resulting from any calculation on Floating Rate Notes will be rounded, in the case of U.S. dollars, to the nearest cent or, in the case of a foreign currency, to the nearest unit (with one-half cent or unit being rounded upwards).

 

Commercial Paper Rate Notes

 

“Commercial Paper Rate” means the Money Market Yield (calculated as described below) of the rate on any Interest Determination Date for commercial paper having the Index Maturity, as published by the Board of Governors of the Federal Reserve System (“FRB”) in Statistical Release, Commercial Paper Rates and Outstanding Summary” or any successor publication of the FRB (“Commercial Paper Rates and Outstanding Summary”), available through the world wide website of the FRB at https://www.federalreserve.gov/releases/cp/default.htm, or any successor site or publication or other recognized source used for the purpose of displaying the applicable rate under the heading “Rates [AA nonfinancial][AA financial]2”.

 

If the above rate is not published in Commercial Paper Rates and Outstanding Summary by 3:00 p.m., New York City time, on the Calculation Date, then the Commercial Paper Rate will be the Money Market Yield of the rate on such Interest Determination Date for commercial paper of the Index Maturity published in the daily update of H.15 Daily Update, available through the world wide website of the FRB at http://www.federalreserve.gov/releases/h15/, or any successor site or publication or other recognized electronic source used for the purpose of displaying the applicable rate (“H.15 Daily Update”) under the heading “Commercial Paper-[Financial][Nonfinancial]”.

 

If by 3:00 p.m. on such Calculation Date such rate is not published in H.15 Daily Update, then the Calculation Agent will determine the Commercial Paper Rate to be the Money Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m. on such Interest Determination Date of three leading dealers of U.S. dollar commercial paper in New York City selected by the Calculation Agent for commercial paper of the Index Maturity placed for an industrial issuer whose bond rating is “AA,” or the equivalent, from a nationally recognized statistical rating organization.

 

 

2 Choose based on nature of Issuer

 

Exhibit C-4

 

 

If the dealers selected by the Calculation Agent are not quoting as mentioned above, the Commercial Paper Rate with respect to such Interest Determination Date will remain the Commercial Paper Rate then in effect on such Interest Determination Date.

 

“Money Market Yield” will be a yield calculated in accordance with the following formula:

 

D x 360

Money Market Yield = ________________ x 100

 

360 - (D x M)

 

where “D” refers to the applicable per annum rate for commercial paper quoted on a bank discount basis and expressed as a decimal and “M” refers to the actual number of days in the interest period for which interest is being calculated.

 

Federal Funds Rate Notes

 

“Federal Funds Rate” means the rate on any Interest Determination Date for federal funds as available through the FRB Website, as displayed on Bloomberg screen FEDL01 Index page on such date (“Bloomberg Screen Page”).

 

If the above rate does not appear on the FRB Website or the Bloomberg Screen Page or is not so published by 3:00 p.m. on the Calculation Date, the Federal Funds Rate will be the rate on such Interest Determination Date as published in H.15 Daily Update under the heading “Federal Funds/(Effective)”.

 

If such rate is not published as described above by 3:00 p.m. on the Calculation Date, the Calculation Agent will determine the Federal Funds Rate to be the arithmetic mean of the rates for the last transaction in overnight U.S. dollar federal funds arranged by each of three leading brokers of Federal Funds transactions in New York City selected by the Calculation Agent prior to 9:00 a.m. on such Interest Determination Date.

 

If the brokers selected by the Calculation Agent are not quoting as mentioned above, the Federal Funds Rate will remain the Federal Funds Rate then in effect on such Interest Determination Date.

 

“FRB Website” means the world wide website of the FRB at http://www.federalreserve.gov/releases/h15/, or any successor site or publication or other recognized electronic source used for the purpose of displaying the H.15 Daily Update.

 

Prime Rate Notes

 

“Prime Rate” means the rate on any Interest Determination Date as published in H.15 Daily Update under the heading “Bank Prime Loan”.

 

Exhibit C-5

 

 

If the above rate is not published in H.15 Daily Update prior to 3:00 p.m. on the Calculation Date, then the Prime Rate will be the rate on such Interest Determination Date as published in H.15 Daily Update opposite the caption “Bank Prime Loan”.

 

If the rate is not published prior to 3:00 p.m. on the Calculation Date in H.15 Daily Update, then the Calculation Agent will determine the Prime Rate to be the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters Screen US PRIME1 Page (as defined below) as such bank’s prime rate or base lending rate as of 11:00 a.m. on that Interest Determination Date.

 

If fewer than four such rates referred to above are so published by 3:00 p.m. on the Calculation Date, the Calculation Agent will determine the Prime Rate to be the arithmetic mean of the prime rates or base lending rates quoted on the basis of the actual number of days in the year divided by 360 as of the close of business on such Interest Determination Date by three major banks in New York City selected by the Calculation Agent.

 

If the banks selected are not quoting as mentioned above, the Prime Rate will remain the Prime Rate in effect on such Interest Determination Date.

 

“Reuters Screen US PRIME1 Page” means the display designated as page “US PRIME1” on the Reuters Monitor Money Rates Service (or such other page as may replace the US PRIME1 page on that service for the purpose of displaying prime rates or base lending rates of major United States banks).

 

Treasury Rate Notes

 

“Treasury Rate” means:

 

(1)       the rate from the auction held on the Interest Determination Date (the “Auction”) of direct obligations of the United States (“Treasury Bills”) having the Index Maturity specified in the Supplement under the caption “INVEST RATE” on the display on the Reuters Page designated as USAUCTION10 (or any other page as may replace that page on that service) or the Reuters Page designated as USAUCTION11 (or any other page as may replace that page on that service), or

 

(2)       if the rate referred to in clause (1) is not so published by 3:00 p.m. on the related Calculation Date, the Bond Equivalent Yield (as defined below) of the rate for the applicable Treasury Bills as published in H.15 Daily Update, under the caption “U.S. Government Securities/Treasury Bills/Auction High”, or

 

(3)       if the rate referred to in clause (2) is not so published by 3:00 p.m. on the related Calculation Date, the Bond Equivalent Yield of the auction rate of the applicable Treasury Bills as announced by the United States Department of the Treasury, or

 

(4)       if the rate referred to in clause (3) is not so announced by the United States Department of the Treasury, or if the Auction is not held, the Bond Equivalent Yield of the rate on the particular Interest Determination Date of the applicable Treasury Bills as published in H.15 Daily Update under the caption “U.S. Government Securities/Treasury Bills/Secondary Market”, or

 

Exhibit C-6

 

 

(5)       if the rate referred to in clause (4) not so published by 3:00 p.m. on the related Calculation Date, the rate on the particular Interest Determination Date of the applicable Treasury Bills as published in H.15 Daily Update, under the caption “U.S. Government Securities/Treasury Bills/Secondary Market”, or

 

(6)       if the rate referred to in clause (5) is not so published by 3:00 p.m. on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 p.m. on that Interest Determination Date, of three primary United States government securities dealers selected by the Calculation Agent for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity specified in the Supplement, or

 

(7)       if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (6), the Treasury Rate in effect on the particular Interest Determination Date.

 

“Bond Equivalent Yield” means a yield (expressed as a percentage) calculated in accordance with the following formula:

 

 

D x N

Bond Equivalent Yield = __________________x 100

 

360 - (D x M)

 

where “D” refers to the applicable per annum rate for Treasury Bills quoted on a bank discount basis and expressed as a decimal, “N” refers to 365 or 366, as the case may be, and “M” refers to the actual number of days in the applicable Interest Reset Period.

 

“Reuters Page” means the display on Thomson Reuters Eikon, or any successor service, on the page or pages specified in this Statement of Terms or the Supplement, or any replacement page on that service.

 

3.Final Maturity. The Stated Maturity Date for any Note will be the date so specified in the Supplement, which shall be no later than 397 days from the date of issuance. On its Stated Maturity Date, or any date prior to the Stated Maturity Date on which the particular Note becomes due and payable by the declaration of acceleration, each such date being referred to as a Maturity Date, the principal amount of such Note, together with accrued and unpaid interest thereon, will be immediately due and payable.

 

Exhibit C-7

 

 

4.Events of Default. The occurrence of any of the following shall constitute an “Event of Default” with respect to a Note: (i) default in any payment of principal of or interest on such Note (including on a redemption thereof); (ii) the Issuer or any Guarantor makes any compromise arrangement with their creditors generally including the entering into any form of moratorium with its creditors generally; (iii) a court having jurisdiction shall enter a decree or order for relief in respect of the Issuer or any Guarantor in an involuntary case under any applicable bankruptcy, insolvency, examinership or other similar law now or hereafter in effect, or there shall be appointed a receiver, administrator, liquidator, custodian, trustee or sequestrator (or similar officer) with respect to the whole or substantially the whole of the assets of the Issuer or any Guarantor and any such decree, order or appointment is not removed, discharged or withdrawn within 60 days thereafter; or (iv) the Issuer or any Guarantor shall commence a voluntary case under any applicable bankruptcy, insolvency, examinership or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment of or taking possession by a receiver, administrator, liquidator, assignee, custodian, trustee or sequestrator (or similar official), with respect to the whole or substantially the whole of the assets of the Issuer or any Guarantor or make any general assignment for the benefit of creditors. Upon the occurrence of an Event of Default, the principal of such Note (together with interest accrued and unpaid thereon) shall become, without any notice or demand, immediately due and payable.

 

5.Obligation Absolute. No provision of the Issuing and Paying Agency Agreement under which the Notes are issued shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on each Note at the times, place and rate, and in the coin or currency, herein prescribed.

 

6.Supplement. Any term contained in the Supplement shall supersede any conflicting term contained herein.

 

Exhibit C-8

 

 

 

Exhibit D Form of Guarantee

 

 

AMENDED AND RESTATED GUARANTEE

 

AMENDED AND RESTATED GUARANTEE, dated as of [●] (the “Guarantee”), of WestRock RKT, LLC, a Georgia limited liability company, WestRock MWV, LLC, a Delaware limited liability company, WestRock Company, a Delaware corporation, Smurfit WestRock US Holdings Corporation, a Delaware corporation, Smurfit WestRock plc, a public limited company incorporated under the laws of Ireland, Smurfit Kappa Treasury Unlimited Company, a public unlimited company incorporated under the laws of Ireland, Smurfit Kappa Acquisitions Unlimited Company, a public unlimited company incorporated under the laws of Ireland, Smurfit Kappa Group plc, a public limited company incorporated under the laws of Ireland, Smurfit Kappa Investments Limited, a private limited company incorporated under the laws of Ireland, Smurfit Kappa Treasury Funding Designated Activity Company, a designated activity company incorporated under the laws of Ireland, and Smurfit International B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands (together, the “Guarantors”, and each such Guarantor formed or organized in a country other than the United States, a “Foreign Guarantor, and collectively, the “Foreign Guarantors”).

 

The Guarantors, for value received, hereby agree as follows for the benefit of the holders from time to time of the Notes hereinafter described:

 

1.The Guarantors, jointly and severally, irrevocably guarantee payment in full, as and when the same becomes due and payable, of the principal of and interest, if any, on (i) the promissory notes (the “Notes”) issued by WRKCo Inc., a Delaware corporation (the “Issuer”), from time to time pursuant to the Amended and Restated Issuing and Paying Agency Agreement, dated as of [●], as the same may be amended, supplemented or modified from time to time, among the Issuer, the Guarantors and U.S. Bank Trust Company, National Association (the “Agreement”), and (ii) any commercial paper notes issued by the Issuer that were outstanding on the date of this Guarantee.

 

2.The Guarantors’ obligations under this Guarantee shall be unconditional, irrespective of the validity or enforceability of any provision of the Agreement or the Notes.

 

3.This Guarantee is a guaranty of the due and punctual payment (and not merely of collection) of the principal of and interest, if any, on the Notes by the Issuer and shall remain in full force and effect until all amounts have been validly, finally and irrevocably paid in full, and shall not be affected in any way by any circumstance or condition whatsoever, including without limitation (a) the absence of any action to obtain such amounts from the Issuer, (b) any variation, extension, waiver, compromise or release of any or all of the obligations of the Issuer under the Agreement or the Notes or of any collateral security therefor or (c) any change in the existence or structure of, or the bankruptcy or insolvency of, the Issuer or by any other circumstance (other than by complete, irrevocable payment) that might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety. Each of the Guarantors waives all requirements as to diligence, presentment, demand for payment, protest and notice of any kind with respect to the Agreement and the Notes.

 

Exhibit D-1

 

 

Any term or provision of this Guarantee to the contrary notwithstanding, the maximum aggregate amount of the Guarantors’ obligations hereunder shall not exceed the maximum amount that can be hereby guaranteed without rendering this Guarantee voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.

 

4.In the event of a default in payment of principal of or interest on any Notes, the holders of such Notes, may institute legal proceedings directly against the Guarantors or any of them to enforce this Guarantee without first proceeding against the Issuer.

 

5.This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment by the Issuer of the principal of or interest, if any, on the Notes, in whole or in part, is rescinded or must otherwise be returned by the holder upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise, all as though such payment had not been made.

 

6.In the event that any of the Guarantors ceases to be an obligor (either as issuer or guarantor) in respect of any and all debt for borrowed money that (a) is in the form of, or represented by, bonds, notes, debentures or other securities (other than promissory notes or similar evidences of debt under a credit agreement) and (b) has an aggregate principal amount outstanding of at least $25.0 million, such Guarantor shall be released from this Guarantee, and all obligations of such Guarantor hereunder shall automatically terminate, all without delivery of any instrument or performance of any act by any party. The Guarantors agree to provide prompt notice of any such termination to the Dealer and will take all such actions reasonably requested by the Dealer in connection therewith.

 

7.This Guarantee shall be governed by and construed in accordance with the laws of the State of New York.

 

8.This Guarantee may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart shall constitute an original of this Guarantee, but together the counterparts shall constitute one document.

 

9.(a) Each of the Guarantors hereby irrevocably accepts and submits to the non-exclusive jurisdiction of the United States federal courts located in the Borough of Manhattan and the courts of the State of New York located in the Borough of Manhattan.

 

(b) Each Foreign Guarantor hereby irrevocably designates, appoints and empowers Smurfit Kappa Packaging LLC, with offices located at 900 S. Pine Island Road, Suite 600, Plantation, Florida 33324 as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and its properties, assets and revenues, service for any and all legal process, summons, notices and documents which may be served in any such action, suit or proceeding brought in the courts listed in Section 8(a) which may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts, with respect to any suit, action or proceeding in connection with or arising out of this Guarantee. If for any reason such designee, appointee and agent hereunder shall cease to be available to act as such, the Foreign Guarantors agree to designate a new designee, appointee and agent in the City of New York on the terms and for the purposes of this Section 9 satisfactory to the Dealer. Each Foreign Guarantor further hereby irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by serving a copy thereof upon the agent for service of process referred to in this Section 9 (whether or not the appointment of such agent shall for any reason prove to be ineffective or such agent shall accept or acknowledge such service) or by mailing copies thereof by registered or certified airmail, postage prepaid, to it at its address specified in or designated pursuant to this Guarantee. Each Foreign Guarantor agrees that the failure of any such designee, appointee and agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Nothing herein shall in any way be deemed to limit the ability of the holders of any Notes to serve any such legal process, summons, notices and documents in any other manner permitted by applicable law or to obtain jurisdiction over the undersigned or bring actions, suits or proceedings against the undersigned in such other jurisdictions, and in such other manner, as may be permitted by applicable law. Each Guarantor hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Agreement brought in the courts listed in Section 8(a) and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

Exhibit D-2

 

 

10.To the extent that a Foreign Guarantor or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding in connection with or arising out of this Guarantee, from the giving of any relief in any thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceeding may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Guarantee, such Foreign Guarantor hereby irrevocably and unconditionally waives, and agrees for the benefit of the Dealer and any holder from time to time of the Notes not to plead or claim, any such immunity, and consents to such relief and enforcement.

 

11.Any payments under this Guarantee shall be in United States dollars and, except to the extent required under applicable law, shall be free of all withholding, stamp and other similar taxes and of all other governmental charges of any nature whatsoever imposed by any jurisdiction in which any Foreign Guarantor is located or from which any such payment is made, as applicable, and, in each case, by any authority or agency therein or thereof having the power to tax (“Taxes”). In the event any withholding is required by law, the Guarantors, jointly and severally, agree to (i) pay the same and (ii) pay such additional amounts which, after deduction of any such Taxes with respect to the payment of such additional amount, shall equal the amount withheld pursuant to clause (i) above; provided that, no such additional amounts shall be payable for or on account of: (1) if that Tax is imposed on or calculated by reference to the income received or franchise tax imposed on the overall net income, profits, capital or net worth of the the holder or beneficial owner of any Note (under the law of its jurisdiction of incorporation, or if different, the jurisdiction in which that person is tax resident) or any Tax or governmental charge that would not have been so imposed but for the existence of any present or former personal or business connection between the person entitled to such payment and the Netherlands or Ireland, as the case may be, other than the mere receipt of such payment or the ownership or holding of such Note, (2) any Taxes imposed by reason of the failure of the recipient to provide customary tax forms or certifications, (3) any withholding which would not have been required but for the presentation of any Notes by the relevant holder or relevant account holder for payment on a date more than 15 days after the Maturity Date or, if applicable, the relevant Interest Payment Date (each as defined in the relevant Note) or (in either case) the date on which payment hereof is duly provided for, whichever occurs later, (4) any estate, inheritance, gift, sales, transfer, excise, or personal property tax or any similar Tax, (5) any Taxes imposed otherwise than by way of withholding or deduction from payments on or in respect of this Agreement, the Notes or the Guarantees, as applicable, or (6) any Taxes imposed in respect of any deduction or withholding required pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, any intergovernmental agreement, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code (or any law implementing such an intergovernmental agreement).

 

Exhibit D-3

 

 

12.The Guarantors, jointly and severally, agree to indemnify each holder from time to time of Notes against any loss incurred by such holder as a result of any judgment or order being given or made for any amount due hereunder or thereunder and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such holder is able to purchase United States dollars with the amount of Judgment Currency actually received by such holder. The foregoing indemnity shall constitute a separate and independent obligation of the Guarantors and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.

 

13.Without prejudice to any of the other provisions of this Agreement, in the event any payment or distribution is made on any date by any Guarantor under this Guarantee, each such Guarantor shall be entitled to be indemnified by each other Guarantor in an amount equal to such payment, in each case multiplied by a fraction of which the numerator shall be the net worth of the contributing Guarantor and the denominator shall be the aggregate net worth of all Guarantors.

 

[Signature page follows]

 

Exhibit D-4

 

  

IN WITNESS WHEREOF, the Guarantors have caused this Guarantee to be duly executed as of the day and year first above written.

 

  WestRock RKT, LLC, as Guarantor
   
  by
     
    Name:
    Title:

 

 

  WestRock MWV, LLC, as Guarantor
   
  by
     
    Name:
   

Title:

     
     
  WestRock COMPANY, as Guarantor
   
  By
     
    Name:
    Title:

 

Exhibit D-5

 

 

  SMURFIT WESTROCK US HOLDINGS CORPORATION, as Guarantor
   
  by
     
    Name:
    Title:

 

 

  SMURFIT INTERNATIONAL B.V., as Guarantor
   
  by
     
    Name:
    Title:

 

Exhibit D-6

 

  

SIGNED for and on behalf of

SMURFIT KAPPA INVESTMENTS LIMITED

by its lawfully appointed attorney

 

in the presence of

and delivered as a deed

    
    Signature
     
     
Witness (Signature)    
     
     
Print Address    
     
     
Witness Occupation    

 

 

SIGNED for and on behalf of

SMURFIT KAPPA GROUP PLC

by its lawfully appointed attorney

 

in the presence of

and delivered as a deed

    
    Signature
     
     
Witness (Signature)    
     
     
Print Address    
     
     
Witness Occupation    

 

Exhibit D-7

 

 

SIGNED for and on behalf of

SMURFIT KAPPA TREASURY FUNDING DESIGNATED ACTIVITY COMPANY

by its lawfully appointed attorney

 

in the presence of

and delivered as a deed

    
    Signature
     
     
Witness (Signature)    
     
     
Print Address    
     
     
Witness Occupation    

 

 

SIGNED for and on behalf of

SMURFIT KAPPA ACQUISITIONS UNLIMITED COMPANY

by its lawfully appointed attorney

 

in the presence of

and delivered as a deed

    
    Signature
     
     
Witness (Signature)    
     
     
Print Address    
     
     
Witness Occupation    

 

Exhibit D-8

 

 

SIGNED for and on behalf of

SMURFIT KAPPA TREASURY UNLIMITED COMPANY

by its lawfully appointed attorney

 

in the presence of

and delivered as a deed

    
    Signature
     
     
Witness (Signature)    
     
     
Print Address    
     
     
Witness Occupation    

 

 

SIGNED for and on behalf of

SMURFIT WESTROCK PLC

by its lawfully appointed attorney

 

in the presence of

and delivered as a deed

    
    Signature
     
     
Witness (Signature)    
     
     
Print Address    
     
     
Witness Occupation    

 

Exhibit D-9

 

 

Exhibit 10.14

 

SMURFIT WESTROCK PLC

 

2024 LONG-TERM INCENTIVE PLAN

 

 

 

 

SECTION 1.
PURPOSE

 

The Company has adopted the Plan (which is discretionary in nature) upon approval of the Compensation Committee of the Board to promote the interest of the Company by authorizing the Committee to grant Awards to Eligible Individuals in order to (1) attract, retain and motivate Eligible Individuals, (2) provide an additional incentive to each Eligible Individual to work to increase the value of Ordinary Shares, and (3) provide each Eligible Individual with a stake in the future of the Company that corresponds to the stake of each of the Company’s shareholders.

 

SECTION 2.
DEFINITIONS

 

For the purposes of the Plan, the following terms shall have the following meanings:

 

2.1            Affiliate - means any entity controlled by, controlling or under common control with the Company.

 

2.2            Applicable Law - means the requirements relating to the administration of the Plan and the Awards granted hereunder under any applicable securities, federal, state, foreign, material local or municipal or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, listing rule, regulation, judicial decision, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any governmental body (including under the authority of any applicable self- regulating organization such as the New York Stock Exchange).

 

2.3            Award - means an award granted under the Plan in the form of an RSU Award, PSU Award, Stock Award, Cash Bonus Incentive, Option or Stock Appreciation Right.

 

2.4            Award Agreement - means an agreement (whether in written or electronic form) that sets forth the terms and conditions of an Award granted under the Plan.

 

2.5            Board - means the Board of Directors of the Company.

 

2.6            Cash Bonus Incentive - means an award granted under Section 9 that represents the right to receive a cash payment, which may be subject to time-based and/or performance-based vesting conditions.

 

2.7            Change in Control - unless the Committee determines otherwise with respect to an Award at the time the Award is granted or unless otherwise defined for purposes of an Award in a written employment, services or other agreement between the Participant and the Company, means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events:

 

(a)            an acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (1) the then-outstanding ordinary shares of the Company (the “Outstanding Company Ordinary Shares”) or (2) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this subsection (a), the following acquisitions shall not constitute a Change in Control: (A) any acquisition directly from the Company; (B) any acquisition by the Company; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company; or (D) any acquisition by any entity pursuant to a transaction that complies with clauses (1), (2) and (3) of subsection (c) of this Section 2.7;

 

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(b)            a change in the composition of the Board such that the individuals who, as of the Effective Time, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual who becomes a member of the Board subsequent to the Effective Time whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual were a member of the Incumbent Board; provided, further, that any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board shall not be considered as a member of the Incumbent Board;

 

(c)            the consummation of a reorganization, merger, examinership, statutory share exchange (including a scheme of arrangement) or consolidation or similar transaction involving the Company or any of its Subsidiaries or sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or securities of another entity by the Company or any of its Subsidiaries (a “Business Combination”), in each case, unless, following such Business Combination: (1) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Ordinary Shares and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then-outstanding ordinary shares (or, for a noncorporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a noncorporate entity, equivalent securities), as the case may be, of the entity resulting from such Business Combination (including an entity that, as a result of such transaction, owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Ordinary Shares and the Outstanding Company Voting Securities, as the case may be; (2) no Person (excluding any entity resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then-outstanding ordinary shares (or, for a noncorporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination; and (3) at least a majority of the members of the board of directors (or, for a noncorporate entity, equivalent body or committee) of the entity resulting from such Business Combination were members of the Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or

 

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(d)            the approval by the shareholders of the Company of a complete liquidation or dissolution of the Company.

 

Notwithstanding any other provision of the Plan or any Award Agreement, with respect to any Award that constitutes “nonqualified deferred compensation” within the meaning of Section 409A of the Code, to the extent required to avoid the application of penalties under Section 409A of the Code, a Change in Control shall not constitute a settlement or distribution event with respect to such Award, or an event that otherwise changes the timing of settlement or distribution of such Award, unless the Change in Control also constitutes an event described in Section 409A(a)(2)(v) of the Code and the regulations thereto. For the avoidance of doubt, this paragraph shall have no bearing on whether an Award vests pursuant to the terms of the Plan or the applicable Award Agreement.

 

2.8            Code - means the U.S. Internal Revenue Code of 1986, as amended from time to time, and all regulations, interpretations, and administrative guidance issued thereunder.

 

2.9            Committee - means the Compensation Committee of the Board or a committee of the Board otherwise named but performing similar functions, including a subcommittee thereof; provided that the Board may take any action designated as a Committee action hereunder.

 

2.10          Companies Act - means the Irish Companies Act 2014, as amended from time to time.

 

2.11          Company - means Smurfit WestRock plc, an Irish public limited company with registration number 607515 having its registered office at Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland, and any successor thereto.

 

2.12          Constitution - means the Company’s memorandum and articles of association, as amended from time to time.

 

2.13          Disaffiliation - means an Affiliate ceasing to be an Affiliate for any reason (including as a result of a public offering, or a spinoff or sale by the Company, of the stock of the Affiliate) or a sale of a division of the Company and its Affiliates.

 

2.14          Effective Time - has the meaning set forth in Section 4.

 

2.15          Eligible Consultant - means any individual who serves as a non-employee consultant or other independent contractor to the Company or any Affiliate, other than an Eligible Director.

 

2.16          Eligible Director - means any member of the Board who is not an employee of the Company or an Affiliate of the Company.

 

2.17          Eligible Employee - means an employee of the Company or any Affiliate.

 

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2.18          Eligible Individual - means an Eligible Employee, an Eligible Director or an Eligible Consultant.

 

2.19          Exchange Act - means the U.S. Securities Exchange Act of 1934, as amended from time to time.

 

2.20          Fair Market Value - means, as of any date on which the fair market value of an Ordinary Share is to be determined, either (a) the closing price on such date for an Ordinary Share as reported on the New York Stock Exchange or other national or international exchange on which the Ordinary Shares are then traded as determined by the Committee, or (b) if no such closing price is available on such date, such closing price for the immediately preceding business day, or (c) if no such closing price or if no such price quotation is available, the price that the Committee acting in good faith determines through any reasonable valuation method that an Ordinary Share might change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of the relevant facts.

 

2.21          ISO - means an Option granted under the Plan to purchase Ordinary Shares that is intended to satisfy the requirements of an “incentive stock option” under Section 422 of the Code or any successor provision.

 

2.22          Non-ISO - means an Option granted under the Plan to purchase Ordinary Shares that is not intended to satisfy the requirements of Section 422 of the Code or any successor provision.

 

2.23          Officer - means a person who is an officer of the Company within the meaning of Rule 3b-7 under the Exchange Act and/or within the meaning of the Companies Act.

 

2.24          Option - means an ISO or a Non-ISO that is granted under Section 7.

 

2.25          Option Price - means the price that shall be paid to purchase one Ordinary Share upon the exercise of an Option granted under the Plan.

 

2.26          Ordinary Share - means an ordinary share of $0.001 each (nominal value) in the capital of the Company.

 

2.27          Participant - means an Eligible Individual who has been granted an Award under the Plan or has been approved for the grant of an Award under the Plan.

 

2.28          Plan - means this Smurfit WestRock plc 2024 Long-Term Incentive Plan, as amended from time to time.

 

2.29          PSU Award - means an award granted under Section 9 that (a) represents the right to receive, after the date of grant, the number of Ordinary Shares subject to such award or a payment in cash based on the Fair Market Value of such Ordinary Shares and (b) is subject to both performance-based and service-based vesting conditions.

 

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2.30          RSU Award - means an award granted under Section 9 that (a) represents the right to receive, after the date of grant, the number of Ordinary Shares subject to such award or a payment in cash based on the Fair Market Value of such Ordinary Shares and (b) is subject solely to service-based vesting conditions.

 

2.31          SAR Value - means the value assigned by the Committee to an Ordinary Share in connection with the grant of a Stock Appreciation Right under Section 8.

 

2.32          Securities Act - means the U.S. Securities Act of 1933, as amended from time to time.

 

2.33          Stock Appreciation Right - means a right that is granted under Section 8 to receive a payment equal to the appreciation in value of an Ordinary Share over the SAR Value.

 

2.34          Stock Award - means an Award of Ordinary Shares granted under Section 9 that results in the issuance on the date of grant of the number of Ordinary Shares subject to such Award, which may be subject to performance-based and/or service-based vesting conditions.

 

2.35          Subsidiary - means any corporation, partnership, joint venture, limited liability company or other entity during any period in which at least a 50% voting or profits interest is owned, directly or indirectly, by the Company or any successor to the Company.

 

2.36          Substitute Awards - means Awards granted or Ordinary Shares issued by the Company in assumption of, or in substitution, replacement or exchange for, awards previously granted, or the right or obligation to make future awards, by a company acquired by the Company or an Affiliate (or ultimate parent of such company) or with which the Company or an Affiliate combines.

 

2.37          Ten Percent Shareholder - means a person who owns (after taking into account the attribution rules of Section 424(d) of the Code) more than 10 percent of the total combined voting power of all classes of shares of either the Company or any Affiliate.

 

2.38          Transfer - means, as the context may require, (a) any sale, assignment, pledge (as collateral for a loan or as security for the performance of an obligation or for any other purpose), hypothecation, mortgage, encumbrance or other disposition, whether by contract, gift, will, intestate succession, operation of law or otherwise, of all or any part of an Award or Ordinary Shares issued thereunder, as applicable and (b) any verb equivalent of the foregoing.

 

SECTION 3.
ORDINARY SHARES AND GRANT LIMITS

 

3.1            Authorized Number of Ordinary Shares. Subject to adjustment from time to time as provided in Section 13, the number of Ordinary Shares available for issuance under the Plan will be 26,000,000 Ordinary Shares.

 

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3.2            Source of Ordinary Shares.

 

(a)            The Ordinary Shares described in Section 3.1 shall be drawn, to the extent that the Company deems appropriate, from authorized but unissued Ordinary Shares or from Ordinary Shares redeemed by the Company and held as treasury.

 

(b)            All Ordinary Shares described in Section 3.1 shall remain available for issuance under the Plan until issued pursuant to an Award, and any Ordinary Shares that are covered by an Award that is forfeited, cancelled, expired, or for which cash is paid out on settlement rather than Ordinary Shares, thereafter shall again become available for issuance under the Plan. If the Option Price under an Option is paid in whole or in part in Ordinary Shares, if Ordinary Shares are, subject to Applicable Law, tendered to or withheld by the Company in satisfaction of any condition to an Award, or if Ordinary Shares are, subject to Applicable Law, tendered to or withheld by the Company to satisfy any tax withholding, such Ordinary Shares thereafter shall not become available for future grants under the Plan.

 

3.3            Use of Proceeds. The proceeds that the Company receives from the sale of any Ordinary Shares under the Plan shall be used for general corporate purposes and shall be added to the general funds of the Company.

 

3.4            Applicable Limits. No Eligible Director shall be granted Awards under the Plan, and/or paid a cash retainer or any other compensation in any calendar year under the Plan or any other arrangement with the Company for service in his or her capacity as an Eligible Director, having an aggregate value, based on Fair Market Value on the grant date where applicable, that exceeds $750,000. For clarity, if an Eligible Director becomes an Eligible Employee during a calendar year, the foregoing limitation shall not apply for such calendar year or any subsequent year while such individual serves as an Eligible Employee. The number of Ordinary Shares issuable under ISOs shall not exceed the number of shares set forth in Section 3.1.

 

3.5            Substitute Awards. Substitute Awards shall not reduce the Ordinary Shares authorized for grant under the Plan or authorized for grant to an Eligible Individual in any period. Additionally, in the event that a company acquired by the Company or any Subsidiary, or with which the Company or any Subsidiary combines, has shares available under a pre-existing plan approved by shareholders and not adopted in contemplation of such acquisition or combination, the shares available for delivery pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of the shares of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Ordinary Shares authorized for delivery under the Plan; provided that Awards using such available Ordinary Shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not employees, Officers, or members of the board of directors of the Company or any of its Subsidiaries, or consultants or other persons providing services to the Company or any Subsidiary, prior to such acquisition or combination.

 

3.6            Nominal Value Requirement. Notwithstanding any other provision of the Plan or the terms of any Award Agreement or Award made thereunder, no Ordinary Share shall be allotted or issued pursuant to the grant, exercise or vesting of an Award (including under any cashless settlement provisions of the Plan or any Award Agreement), unless such Ordinary Share is fully paid-up on issuance, in cash or for other good consideration, to at least its nominal value and in a manner which does not contravene Sections 82 and 1043 of the Companies Act or any other provision of the Companies Act, and all Awards shall be deemed to incorporate such a term.

 

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3.7            Net Settlement Requirement. Notwithstanding any other provision of the Plan or the terms of any Award Agreement or Award made thereunder, no Ordinary Share may be allotted or issued pursuant to the grant, exercise, vesting or settlement of an Award on a “net settlement basis”, unless such Ordinary Share is fully paid up, in cash, on issuance to at least its nominal value and in a manner which does not contravene Sections 82 and 1043 of the Companies Act, referred to above, or any other provisions of the Companies Act, and all Awards shall be deemed to incorporate such a term. A “net settlement” provision is one that entitles a holder of an Award to surrender its right to be issued Ordinary Shares (and to receive a lesser number of Ordinary Shares), on an elective or mandatory basis, upon an Award’s grant, exercise, vesting or settlement in, or purportedly in, full, or partial, satisfaction of the applicable withholding taxes and/or, in the case of an Award in the form of an Option, the relevant exercise price of the Option. For the avoidance of doubt, in such circumstances, the nominal value of the reduced number of Ordinary Shares to be issued must, in all circumstances, be paid-up in cash, and the issuance of such Ordinary Shares shall take effect as an issue of Ordinary Shares for cash paid-up to their nominal value.

 

3.8            Right to Repurchase. To the extent any Award granted by the Company contains a contractual right on the part of the Company to repurchase Ordinary Shares, such right shall, for all purposes of the Companies Act, constitute a right to redeem the Ordinary Shares (and any relevant Ordinary Shares which are issued subject to such a redemption right shall be issued as redeemable Ordinary Shares without further action on the part of the Board, any committee or any delegate of the Board).

 

3.9            Repurchase of Shares for Value. No Ordinary Shares may be acquired, whether by way of redemption or purchase, by the Company for valuable consideration other than out of “profits available for distribution” within the meaning of Section 117 of the Companies Act and otherwise in compliance with the relevant provisions of Parts 3 and 17 of the Companies Act. Fully paid-up Ordinary Shares may be surrendered or transferred to the Company otherwise than for valuable consideration as permitted by Section 102 of the Companies Act.

 

3.10          Fractional Ordinary Shares. No fractional Ordinary Shares shall be issued under the Plan, and, except as otherwise provided in the Plan, the Committee shall determine the manner in which any fractional value of Ordinary Shares is to be treated.

 

SECTION 4.
EFFECTIVE TIME

 

The Plan shall become effective immediately prior to completion of the transaction contemplated by the Transaction Agreement, dated as of September 12, 2023, among the Company, Smurfit Kappa Group Plc, WestRock Company, and the other party named therein (the “Effective Time”).

 

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SECTION 5.
COMMITTEE

 

The Plan shall be administered by the Committee. The Committee acting in its sole and absolute discretion shall exercise such powers and take such action as expressly called for under the Plan and, further, the Committee shall have the power to interpret the Plan and to take such other action in the administration and operation of the Plan as the Committee deems equitable under the circumstances, which action shall be binding on the Company, on each affected Eligible Individual and on each other person directly or indirectly affected by such action. Furthermore, the Committee, as a condition to making any grant under the Plan to any Participant, shall have the right to require him or her to execute an agreement that makes the Participant subject to non-competition provisions and other restrictive covenants that run in favor of the Company.

 

Subject to the limitations of the Companies Act and the Constitution and Applicable Law, the Committee may delegate its authority under the Plan to one or more Officers of the Company provided that no Officer may designate himself or herself as an Award recipient under any authority delegated to the Officer.

 

SECTION 6.
ELIGIBILITY

 

Any Eligible Individual may be approved by the Committee to receive an Award under the Plan, provided that only an Eligible Employee who is employed by the Company or any Affiliate may be granted ISOs under the Plan. The Committee has the sole and absolute discretion to determine which Eligible Individuals will be granted Awards under the Plan.

 

SECTION 7.
OPTIONS

 

7.1            Committee Action. The Committee acting in its sole and absolute discretion shall have the right to grant Options to Participants under the Plan from time to time to purchase Ordinary Shares, but the Committee shall not (subject to Section 13) take any action, whether through amendment, cancellation, replacement grants, or any other means, to reduce the Option Price of any outstanding Options absent approval of the Company’s shareholders or to effect a cash buyout of any outstanding Option that has an Option Price per Ordinary Share in excess of the then-Fair Market Value per Ordinary Share. Each grant of an Option to a Participant shall be evidenced by an Award Agreement, and each Award Agreement shall set forth whether the Option is an ISO or a Non-ISO; however, if the Committee grants an ISO and a Non-ISO to an Eligible Employee on the same date, the right of the Eligible Employee to exercise the ISO shall not be conditioned on his or her failure to exercise the Non-ISO.

 

7.2            $100,000 Limit. No Option shall be treated as an ISO to the extent that the aggregate Fair Market Value of the Ordinary Shares subject to the Option that would first become exercisable in any calendar year exceeds $100,000. Any such excess shall instead automatically be treated as a Non-ISO. The Committee shall interpret and administer the ISO limitation set forth in this Section 7.2 in accordance with Section 422(d) of the Code, and the Committee shall treat this Section 7.2 as in effect only for those periods for which Section 422(d) of the Code is in effect.

 

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7.3            Option Price. The Option Price for each Ordinary Share subject to an Option shall be no less than the Fair Market Value of an Ordinary Share on the date on which the Option is granted; provided, however, if the Option is an ISO granted to an Eligible Employee who is a Ten Percent Shareholder, the Option Price for each Ordinary Share subject to such ISO shall be no less than 110% of the Fair Market Value of an Ordinary Share on the date such ISO is granted. In no circumstances shall the Option Price per Ordinary Share be less than the Ordinary Share’s nominal value.

 

7.4            Payment. Subject to any Company insider trading policy (including blackout periods) and Applicable Law, the Option Price shall be payable in full upon the exercise of any Option and, at the sole and absolute discretion of the Committee, an Award Agreement can provide for the payment of the Option Price (a) in cash, (b) by check, (c) in Ordinary Shares that are acceptable to the Committee, (d) through any cashless exercise procedure that is effected by an unrelated broker through a sale of Ordinary Shares in the open market and that is acceptable to the Committee, (e) through any cashless exercise procedure that is acceptable to the Committee, including by having the Company withhold Ordinary Shares that would otherwise be issued, or (f) in any combination of the foregoing forms of payment. Any payment made in Ordinary Shares shall be treated as equal to the Fair Market Value of such Ordinary Shares on the date, as applicable, the certificate for such Ordinary Shares (or proper evidence of such certificate) is presented to the Committee or its delegate in such form as acceptable to the Committee or Ordinary Shares that would otherwise be issued are withheld by the Company. Any method for the payment of the Option Price permitted pursuant to this Section 7.4 may be used for the payment of any withholding requirements.

 

7.5            Exercise.

 

(a)            Exercise Period. Each Option granted under the Plan shall be exercisable in whole or in part at such time or times as set forth in the related Award Agreement, but no Award Agreement shall make an Option exercisable on or after:

 

(i)            the date that is the 5th anniversary of the date on which the Option is granted, if the Option is an ISO and the Eligible Employee is a Ten Percent Shareholder on the date the Option is granted, or

 

(ii)            the date that is the 10th anniversary of the date on which the Option is granted, if the Option is (A) a Non-ISO or (B) an ISO that is granted to an Eligible Employee who is not a Ten Percent Shareholder on the date the Option is granted.

 

(b)            Fractional Ordinary Shares. In no circumstances may an Option be exercised for a fraction of an Ordinary Share.

 

(c)            Termination of Status as Participant. Subject to Section 7.5(a), an Award Agreement may provide for the exercise of an Option after a Participant’s status as such has terminated for any reason whatsoever, including death or disability.

 

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SECTION 8.
STOCK APPRECIATION RIGHTS

 

8.1            Committee Action. The Committee acting in its sole and absolute discretion shall have the right to grant Stock Appreciation Rights to Participants under the Plan from time to time, but the Committee shall not (subject to Section 13) take any action, whether through amendment, cancellation, replacement grants, or any other means, to reduce the SAR Value of any outstanding Stock Appreciation Rights absent approval of the Company’s shareholders or to effect a cash buyout of any outstanding Stock Appreciation Rights that has a SAR Value per Ordinary Share in excess of the then-current Fair Market Value per Ordinary Share on which the right to appreciation is based. Each Stock Appreciation Right grant shall be evidenced by an Award Agreement.

 

8.2            Terms and Conditions. Each Stock Appreciation Right shall be evidenced by an Award Agreement, and such Award Agreement shall set forth the number of Ordinary Shares on which the Participant’s right to appreciation shall be based and the SAR Value of each Ordinary Share. Such SAR Value shall be no less than the Fair Market Value of an Ordinary Share on the date that the Stock Appreciation Right is granted. The Award Agreement shall set forth such other terms and conditions for the exercise of the Stock Appreciation Right as the Committee deems appropriate under the circumstances, but no Award Agreement shall make a Stock Appreciation Right exercisable on or after the date that is the 10th anniversary of the date such Stock Appreciation Right is granted.

 

8.3            Exercise. A Stock Appreciation Right shall be exercisable only when the Fair Market Value of an Ordinary Share on which the right to appreciation is based exceeds the SAR Value for such Ordinary Share, and the payment due on exercise shall be based on such excess with respect to the number of Ordinary Shares to which the exercise relates. A Participant upon the exercise of his or her Stock Appreciation Right shall receive a payment from the Company in cash or in Ordinary Shares issued under the Plan, or in a combination of cash and Ordinary Shares, and the number of Ordinary Shares issued shall be based on the Fair Market Value of an Ordinary Share on the date the Stock Appreciation Right is exercised. The Committee acting in its sole and absolute discretion shall have the right to determine the form and time of any payment under this Section 8.3.

 

SECTION 9.
OTHER AWARDS

 

9.1            Committee Action. The Committee acting in its sole and absolute discretion shall have the right to grant RSU Awards, PSU Awards, Stock Awards and Cash Bonus Incentives to Participants.

 

9.2            Terms and Conditions.

 

(a)            RSU Awards. Each RSU Award shall be evidenced by an Award Agreement. The Award Agreement shall set forth the number of Ordinary Shares to which the RSU Award relates, the conditions to vesting (including service-based vesting conditions) and settlement of the RSU Award, and the other terms and conditions determined by the Committee to be appropriate.

 

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(b)            PSU Awards. Each PSU Award shall be evidenced by an Award Agreement. The Award Agreement shall set forth the number of Ordinary Shares to which the PSU Award relates, the conditions to vesting (including performance-based and service-based vesting conditions) and settlement of the PSU Award, and the other terms and conditions determined by the Committee to be appropriate.

 

(c)            Stock Awards. Each Stock Award shall be evidenced by an Award Agreement. The Award Agreement shall set forth the number of Ordinary Shares to which the Stock Award relates, the conditions to vesting (including service-based and/or performance-based vesting conditions), and the other term and conditions determined by the Committee to be appropriate. Each Ordinary Share subject to a Stock Award shall not be available for re-issuance under Section 3 until such time, if any, as such Ordinary Share thereafter is forfeited as a result of a failure to timely satisfy a forfeiture condition. The Company shall have the right to condition the issuance of Ordinary Shares pursuant to a Stock Award on the Participant first signing an irrevocable stock power in favor of the Company with respect to the forfeitable Ordinary Shares issued to such Participant in order for the Company to effect any forfeiture called for under the related Award Agreement.

 

(d)            Cash Bonus Incentive. Each Cash Bonus Incentive shall be evidenced by an Award Agreement. The Award Agreement will set forth the amount of cash that is subject to the Cash Bonus Incentive, the conditions to vesting (including performance-based and/or service-based vesting conditions), and the other terms and conditions determined by the Committee to be appropriate.

 

9.3            Dividends; Voting Rights.

 

(a)            Cash Dividends. To the extent set forth in an Award Agreement (and to the extent permitted by Applicable Law and the Constitution with regard to the declaration and making of dividends), if a dividend is paid in cash on Ordinary Shares while an RSU Award, PSU Award or Stock Award is outstanding: (i) in the case of a Stock Award, the Company shall hold such cash dividend subject to the same vesting conditions that apply to the related Stock Award and pay such dividend to the Participant only upon satisfaction of such conditions and (ii) in the case of an RSU Award or PSU Award, the Company (A) may credit a cash dividend equivalent to such cash dividend subject to the same vesting and settlement conditions that apply to the related RSU Award or PSU Award and pay such cash dividend equivalent to the Participant only upon satisfaction of such conditions or (B) may provide that the number of Ordinary Shares subject to the RSU Award or PSU Award shall be automatically increased by the number of Ordinary Shares that could be purchased with the dividends paid on an equivalent number of outstanding Ordinary Shares, which incremental number of Ordinary Shares shall be subject to the same vesting and settlement conditions that apply to other Ordinary Shares subject to the corresponding RSU Award or PSU Award and will be delivered only upon satisfaction of such conditions.

 

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(b)            Voting. Except as otherwise set forth in an Award Agreement (and to the extent permitted by Applicable Law and the Constitution), a Participant shall have the right to vote the Ordinary Shares issued under a Stock Award during the period that comes after such Ordinary Shares have been issued but before the first date that the Participant’s interest in such Ordinary Shares (i) is forfeited completely or (ii) becomes completely non-forfeitable. A Participant shall not have the right to vote the shares underlying an RSU Award or PSU Award unless and until such Ordinary Shares are issued to the Participant in settlement of the award.

 

SECTION 10.
NON-TRANSFERABILITY

 

10.1          Void Transfers. In general, any Transfer or purported Transfer of an Award or of Ordinary Shares issued under the Plan in violation of the Plan or the Constitution will be null and void, will have no force or effect, and the Company will not register in its records any such purported Transfer.

 

10.2          Permitted Transfers. A Participant may not Transfer (absent the Committee’s prior written consent) an Award or an interest in an Award other than (i) a Transfer on the Participant’s death by will or by the laws of descent and distribution, and (ii) Transfers of vested Ordinary Shares after the period of restrictions have lapsed or been removed and the Ordinary Shares have been issued to the Participant, subject to compliance with the Constitution, the Company’s insider trading policy and Applicable Law.

 

10.3          Exercise by Participants. Any Option or Stock Appreciation Right shall (absent the Committee’s prior written consent) be exercisable during a Participant’s lifetime only by the Participant; provided, however, that no Option will be transferred for value.

 

10.4          Transfers Upon Death. The person or persons to whom an Award is transferred by will or by the laws of descent and distribution (or with the Committee’s prior written consent) thereafter shall be treated as the Participant solely for that particular Award.

 

SECTION 11.
SECURITIES REGISTRATION

 

As a condition to the receipt of Ordinary Shares under the Plan, the Participant shall, if so requested by the Company, agree to hold such Ordinary Shares for investment and not with a view of resale or distribution to the public and, if so requested by the Company, shall deliver to the Company a written statement satisfactory to the Company to that effect. Furthermore, if so requested by the Company, the Participant shall make a written representation to the Company that he or she will not sell or offer for sale any of such Ordinary Shares unless a registration statement shall be in effect with respect to such Ordinary Shares under the Securities Act and any applicable state securities law or he or she shall have furnished to the Company an opinion in form and substance satisfactory to the Company of legal counsel satisfactory to the Company that such registration is not required. Certificates or other evidence of ownership representing the Ordinary Shares transferred upon the exercise of an Option or Stock Appreciation Right or upon the lapse of the forfeiture conditions, if any, on any Ordinary Shares Grant may at the sole and absolute discretion of the Company bear a legend to the effect that such Ordinary Shares has not been registered under the Securities Act or any applicable state securities law and that such Ordinary Shares cannot be sold or offered for sale in the absence of an effective registration statement as to such Ordinary Shares under the Securities Act and any applicable state securities law or an opinion in form and substance satisfactory to the Company of legal counsel satisfactory to the Company that such registration is not required.

 

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SECTION 12.
LIFE OF PLAN

 

No Award may be granted under the Plan after the 10th anniversary of the Effective Time, in which event the Plan otherwise thereafter shall continue in effect until no Awards granted prior to such 10th anniversary remain outstanding.

 

SECTION 13.
ADJUSTMENT

 

13.1          Corporate Transactions. In the event of a merger, consolidation, acquisition of property or shares (including acquisitions by the Company of its Ordinary Shares), share rights offering, liquidation, disposition for consideration of the Company’s direct or indirect ownership of an Affiliate (including by reason of a Disaffiliation), or similar event affecting the Company or any of its Subsidiaries (each, a “Corporate Transaction”), the Committee may in its sole and absolute discretion make such substitutions or adjustments as it deems appropriate and equitable to (a) the limits set forth in Sections 3.1 and 3.4; (b) the aggregate number and kind of shares or other securities reserved for issuance and delivery under the Plan; (c) the number and kind of shares or other securities subject to outstanding Awards; (d) the performance goals applicable to outstanding Awards; and (e) the exercise price of outstanding Awards. In the event of a Corporate Transaction, such adjustments may include (i) the cancellation of outstanding Awards in exchange for payments of cash, property or a combination thereof having an aggregate value equal to the value of such Awards, as determined by the Committee in its sole and absolute discretion (it being understood that in the event of a Corporate Transaction with respect to which holders of Ordinary Shares receive consideration other than publicly traded equity securities of the ultimate surviving entity, any such determination by the Committee that the value of an Option or Stock Appreciation Right shall for this purpose be deemed to equal the excess, if any, of the value of the consideration being paid for each Ordinary Share pursuant to such Corporate Transaction over the exercise price of such Option or Stock Appreciation Right shall be deemed conclusively valid); (ii) the substitution of other property (including cash or other securities of the Company and securities of entities other than the Company) for the Ordinary Shares subject to outstanding Awards; or (iii) in connection with any Disaffiliation, arranging for the assumption of Awards, or replacement of Awards with new awards based on other property or other securities (including other securities of the Company and securities of entities other than the Company), by the affected Affiliate, or division or by the entity that controls such Affiliate, or division following such Disaffiliation (as well as any corresponding adjustments to Awards that remain based upon Company securities).

 

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13.2          Changes in Capital Structure. In the event of a share dividend, share split, reverse share split, reorganization, share combination, or recapitalization or similar event affecting the capital structure of the Company, or a Disaffiliation, separation or spinoff, in each case without consideration, or other extraordinary dividend of cash or other property to the Company’s shareholders, the Committee shall make such substitutions or adjustments as it deems appropriate and equitable to (a) the limits set forth in Sections 3.1 and 3.4; (b) the aggregate number and kind of shares or other securities reserved for issuance and delivery under the Plan; (c) the number and kind of shares or other securities subject to outstanding Awards; (d) the performance goals applicable to outstanding Awards; and (e) the exercise price of outstanding Awards.

 

13.3          Section 409A of the Code. This Section shall apply to Participants on a United States-based payroll or otherwise subject to taxation in the United States. Any adjustments made pursuant to this Section 13 to Awards that are considered “nonqualified deferred compensation” subject to Section 409A of the Code shall be made in compliance with the requirements of Section 409A of the Code. Any adjustments made pursuant to this Section 13 to Awards that are not considered “nonqualified deferred compensation” subject to Section 409A of the Code shall be made in such a manner as to ensure that after such adjustments, either (a) the Awards continue not to be subject to Section 409A of the Code or (b) there does not result in the imposition of any penalty taxes under Section 409A of the Code in respect of such Awards.

 

SECTION 14.
CHANGE IN CONTROL

 

14.1          General. Subject to Section 13 and notwithstanding any other provision of the Plan to the contrary, the provisions of this Section 14 shall apply to Awards, except to the extent the Committee specifically provides otherwise in an Award Agreement.

 

14.2          Impact of Change in Control. Upon the occurrence of a Change in Control, unless otherwise provided in the applicable Award Agreement:

 

(a)            the applicable performance goals for any performance-based Award shall be deemed achieved at the greater of (i) the applicable target level and (ii) the level of achievement as determined by the Committee, taking into account performance through the latest date preceding the Change in Control as to which performance can, as a practical matter, be determined, which date shall not be later than the end of the applicable performance period; and

 

(b)            after giving effect to Section 14.2(a), all then-outstanding Options and Stock Appreciation Rights shall become fully vested and exercisable, and all other Awards shall vest in full, be free of restrictions, and be deemed to be earned and payable in an amount equal to the full value of such Award, except in each case to the extent that another Award meeting the requirements of Section 14.3 (any award meeting the requirements of Section 14.3, a “Replacement Award”) is provided to the Participant pursuant to Section 13 to replace such Award (any award intended to be replaced by a Replacement Award, a “Replaced Award”).

 

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14.3          Replacement Awards. An Award shall meet the conditions of this Section 14.3 (and hence qualify as a Replacement Award) if: (a) it is of the same type as the Replaced Award; (b) it has a value equal to the value of the Replaced Award as of the date of the Change in Control, as determined by the Committee in its sole and absolute discretion consistent with Section 13; (c) it relates to publicly traded equity securities of the Company or the entity surviving the Company following the Change in Control, if the underlying Replaced Award was an equity-based award; (d) it contains vesting and forfeiture terms (including with respect to vesting schedule and a termination of service) that are not less favorable to the Participant than those of the Replaced Award (taking into account the rights on termination of service set forth in Section 14.4, as applicable); and (e) its other terms and conditions are not less favorable to the Participant than the terms and conditions of the Replaced Award (including the provisions that would apply in the event of a subsequent Change in Control) as of the date of the Change in Control. Without limiting the generality of the foregoing, a Replacement Award may take the form of a continuation of the applicable Replaced Award if the requirements of the preceding sentence are satisfied. If a Replacement Award is granted, the Replaced Award shall not vest upon the Change in Control. The determination of whether the conditions of this Section 14.3 are satisfied shall be made by the Committee, as constituted immediately before the Change in Control, in its sole and absolute discretion.

 

14.4          Termination of Service. Notwithstanding any other provision of the Plan to the contrary and unless otherwise determined by the Committee and set forth in the applicable Award Agreement, upon a termination of service of a Participant by the Company other than for cause (as defined in the applicable Award Agreement) or by the Participant for “good reason” (if and to the extent such term is included, and defined, in the applicable Award Agreement) within 24 months following a Change in Control, (a) all Replacement Awards held by such Participant shall vest in full, be free of restrictions, and be deemed to be earned in full, and (b) any Non-ISO or Stock Appreciation Right held by the Participant as of the date of the Change in Control that remains outstanding as of the date of such termination of service may thereafter be exercised until the expiration of the stated full term of such Non-ISO or Stock Appreciation Right.

 

SECTION 15.
AMENDMENT OR TERMINATION

 

The Committee or the Board may amend, alter, or discontinue the Plan or any Award, provided that no amendment, alteration or discontinuation shall be made that would materially impair the rights of an Participant with respect to a previously granted Award without such Participant’s consent, except to the extent necessary to comply with Applicable Law, including Section 409A of the Code, applicable stock exchange listing standards or accounting rules. In addition, no amendment shall be made without the approval of the Company’s shareholders to the extent such approval is required by Applicable Law or applicable stock exchange listing standards. For the avoidance of doubt, any action taken by the Committee pursuant to Section 13 shall not be considered an amendment, alteration or discontinuation for purposes of the Plan.

 

SECTION 16.
DATA PRIVACY

 

16.1          Data Privacy.

 

(a)            Compliance with Applicable Data Protection Laws. In administering the Plan, the Company shall comply with any Applicable Law that govern or otherwise apply to personal data processed in connection with the Plan, including the General Data Protection Regulation (Regulation (EU) No 2016/679) (the “GDPR”) and the Irish Data Protection Act 2018 (the “DPA”), in each case as amended, supplemented or replaced from time to time.

 

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(b)            Information Notice. Before an individual becomes a Participant in the Plan, the Company (or the Committee on its behalf) shall make available to the relevant Participant a privacy notice, which provides information in relation to the processing of personal data in connection with the Plan and complies with the transparency requirements of the GDPR and the DPA.

 

(c)            Acknowledgement of Receipt of Transparency Notice. It shall be a term and condition of participation in the Plan that a Participant acknowledges the receipt of the information provided in accordance with this Section 16 and that he or she has read and understood the privacy notice provided to him or her.

 

(d)            Engagement of Processors. If the Company engages any other party to process personal data on its behalf in connection with the Plan and / or any Awards, the Company shall enter into an agreement with that party in accordance with Article 28 of the GDPR prior to the processing taking place.

 

(e)            International Transfers. The Company shall not transfer any personal data, processed in connection with the Plan and / or any Awards, outside the European Economic Area other than in accordance with the GDPR, including by implementing an appropriate safeguarding mechanism and conducting a transfer risk assessment (if required).

 

SECTION 17.
MISCELLANEOUS

 

17.1          Shareholder Rights. No Participant shall have any rights as a shareholder of the Company as a result of the grant of an Award prior to the actual delivery of the Ordinary Shares subject to such Award to such Participant.

 

17.2          Additional Compensation Arrangements; No Contract of Employment. Nothing contained in the Plan shall prevent or limit the Company or any Affiliate from adopting other or additional compensation arrangements for any employee, director or other service provider. The Plan shall not constitute a contract of employment including compensation under any such contract, and adoption of the Plan or the grant of Awards shall not confer upon any Participant any right to continued employment or service or grant of future Awards, nor shall it interfere in any way with the right of the Company or any Affiliate to terminate the employment or service of any Participant at any time. Participation in the Plan is voluntary and at the sole and absolute discretion of the Company. The Plan shall not be deemed to constitute part of an Eligible Employee’s terms and conditions of employment or compensation under it.

 

17.3          Withholding; Taxes. Each Award shall be made subject to the condition that the Participant consents to the deduction by the Company or any Affiliate, or agrees to make provision satisfactory to the Company or any Affiliate, to satisfy the applicable statutory federal, state, local and/or non-U.S. tax withholding requirements (including any social security contributions or similar liabilities), if any, including up to the maximum permissible statutory tax rate that the Company or any Affiliate determines are applicable to such Award (including the grant, exercise, vesting and/or settlement of the Award). No withholding shall be effected under the Plan that exceeds the maximum statutory withholding that the Company or any Affiliate is required to make pursuant to any applicable withholding obligations. Where a Participant tenders Shares to the Company or any Affiliate to the extent permitted under this Plan, the Participant must pay to the Company or the Affiliate in advance an amount equal to any tax or duty arising on the delivery of the Shares to the Company or the Affiliate.

 

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17.4          Compensation Recoupment Policy. All Awards and all payments made under the Plan shall be subject to (a) the requirements of Applicable Law, (b) any compensation recoupment or “clawback” policy of the Company providing for the recovery of compensation, as such policy is in effect from time to time, and (c) any “clawback” provisions in a Participant’s terms of employment (as applicable) as may be adopted from time to time by the Company, all to the extent determined by the Committee in its sole and absolute discretion to be applicable to a Participant. By accepting the grant of any Award hereunder, each Participant shall be deemed to agree to be bound by such policy to the extent applicable.

 

17.5          Trading Policy. Transactions involving Awards shall be subject to the Company’s insider trading policy and other restrictions, term, conditions and policies, as may be established by the Company (including the Board and / or a committee thereof) from time to time as may be required by Applicable Law.

 

17.6          Construction. All references to sections (Section) are to sections of the Plan unless otherwise indicated. Each term set forth in Section 2 shall, unless otherwise stated, have the meaning set forth opposite such term for purposes of the Plan and, for purposes of such definitions, the singular shall include the plural and the plural shall include the singular. All references to Applicable Law shall be deemed to include any amendments to such laws and any successor provisions to such laws. Finally, if there is any conflict between the terms of the Plan and the terms of any Award Agreement, the terms of the Plan shall prevail.

 

17.7          Other Conditions. Each Award may require that a Participant (as a condition to the exercise of an Option or a Stock Appreciation Right or the issuance of Ordinary Shares subject to any other Award) enter into any agreement or make such representations prepared by the Company, including (without limitation) any agreement that restricts the transfer of Ordinary Shares so acquired or provides for the redemption of such Ordinary Shares by the Company. Notwithstanding any other provision of the Plan or any Award Agreement, the Company shall not be required to issue or deliver any Ordinary Shares (whether in certificated or book entry form) under the Plan prior to fulfillment of both of the following conditions: (a) any registration or other qualification of such Ordinary Shares of the Company under any applicable state or federal law or regulation, or the maintaining in effect of any such registration or other qualification that the Committee shall, in its sole and absolute discretion upon the advice of counsel, deem necessary or advisable; and (b) obtaining any other consent, approval, or permit from any applicable state or federal governmental agency that the Committee shall, in its sole and absolute discretion, determine to be necessary or advisable.

 

17.8          Other Governing Documents. The Committee may require a Participant, as a condition to receiving Ordinary Shares under the Plan, to sign any additional documentation as reasonably required by the Committee for compliance with Applicable Law and orderly administration of the Plan.

 

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17.9          Section 409A. This Section shall apply to Participants on a United States-based payroll or otherwise subject to taxation in the United States. The Plan and the Awards hereunder are intended to comply with the requirements of Section 409A of the Code or an exemption or exclusion therefrom and, with respect to amounts that are subject to Section 409A of the Code, it is intended that the Plan be administered in all respects in accordance with Section 409A of the Code. Each payment under any Award shall be treated as a separate payment for purposes of Section 409A of the Code. In no event may a Participant, directly or indirectly, designate the calendar year of any payment to be made under any Award that constitutes nonqualified deferred compensation subject to Section 409A of the Code. Notwithstanding any other provision of the Plan or any Award Agreement to the contrary, if a Participant is a “specified employee” within the meaning of Section 409A of the Code (as determined in accordance with the methodology established by the Company), amounts that constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code that otherwise would be payable by reason of such Participant’s “separation from service” (within the meaning of Section 409A of the Code) during the six-month period immediately following such separation from service shall instead be paid or provided on the first business day following the date that is six months following the Participant’s separation from service or any earlier date permitted by Section 409A of the Code. If the Participant dies following the separation from service and prior to the payment of any amounts delayed on account of Section 409A of the Code, such amounts shall be paid to the personal representative of the Participant’s estate within 30 days following the date of the Participant’s death.

 

17.10        Relationship to Other Benefits. No payment of benefit under the Plan shall be taken into account in determining any benefits pursuant to any pension, retirement, savings, profit sharing, group insurance, termination programs and/or indemnities or severance payments, welfare or other benefit plan of the Company or any Affiliate, except to the extent otherwise expressly provided in writing in such other plan or arrangement.

 

17.11        Choice of Law and Venue. The Plan, all Awards granted thereunder, and all determinations made and actions taken pursuant hereto, shall be governed by and interpreted in accordance with the laws of Ireland without giving effect to principles of conflicts of law. Eligible Individuals irrevocably consent to the nonexclusive jurisdiction and venue of the courts of Ireland.

 

17.12        Indemnification.

 

(a)            Subject to section 235 of the Companies Act and other Applicable Law, each person who is or was a member of the Board, the Committee, or a committee of the Board or an Officer of the Company to whom authority to administer the Plan was delegated in accordance with the Plan, will be indemnified and held harmless by the Company against and from any loss, cost, liability or expense that may be imposed upon or reasonably incurred by such person in connection with or resulting from any claim, action, suit or proceeding to which such person may be a party or in which such person may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by such person in settlement thereof, with the Company’s approval, or paid by such person in satisfaction of any judgment in any such claim, action, suit or proceeding against such person, unless such loss, cost, liability or expense is a result of such person’s own willful misconduct or except as expressly provided by statute; provided, however, that such person will give the Company an opportunity, at its own expense, to handle and defend the same before such person undertakes to handle and defend it on such person’s own behalf.

 

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(b)            The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such person may be entitled under the Constitution, as a matter of law, or otherwise, or of any power that the Company may have to indemnify or hold harmless.

 

17.13        Electronic Communication. Any document required to be delivered under the Plan, including under Applicable Law, may be delivered in writing or electronically. Signature also may be electronic if permitted by the Company.

 

17.14        Successors. All obligations of the Company under the Plan, with respect to Awards granted hereunder, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business or assets of the Company.

 

17.15        Plan Expenses. All expenses and costs in connection with the operation of the Plan shall be borne by the Company or an Affiliate and no part thereof shall be charged against Awards or to Participants.

 

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IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute the Plan to evidence its adoption of the Plan.

 

  SMURFIT WESTROCK PLC
   
  By: /s/ Ken Bowles
  Date: July 5, 2024

 

 

 

 

Exhibit 10.15

 

SMURFIT WESTROCK PLC

 

ANNUAL SHORT-TERM INCENTIVE PLAN

 

 

 

 

1.Purpose

 

The Company has adopted this Plan (which is discretionary in nature) upon approval of the Compensation Committee of the Board to reinforce corporate, organizational and other goals; to promote high performance by the achievement of those goals; to ensure a strong linkage of pay to performance; and to attract, retain and motivate eligible employees.

 

2.Effectiveness

 

The Plan shall become effective immediately prior to completion of the transaction contemplated by the Transaction Agreement, dated as of September 12, 2023, among the Company, Smurfit Kappa Group Plc, WestRock Company, and the other party named therein (the “Effective Time”).

 

3.Definitions

 

For the purposes of the Plan, the following terms shall have the following meanings:

 

3.1.           Affiliate - means any entity controlled by, controlling or under common control with the Company.

 

3.2.           Applicable Law - means the requirements relating to the administration of the Plan and the Awards granted hereunder under any applicable securities, federal, state, foreign, material local or municipal or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, listing rule, regulation, judicial decision, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by under the authority of any governmental body (including under the authority of any applicable self- regulating organization such as the New York Stock Exchange).

 

3.3.           Award - means a cash award based on the achievement of performance goals for a Performance Period.

 

3.4.           Board - means the Board of Directors of the Company.

 

3.5.           Change in Control - has the meaning set forth in the Company’s 2024 Long-Term Incentive Plan (or any successor plan thereto).

 

3.6.           Code - means the U.S. Internal Revenue Code of 1986, as amended from time to time, and all regulations, interpretations, and administrative guidance issued thereunder.

 

3.7.           Committee - means the Compensation Committee of the Board or a committee of the Board otherwise named but performing similar functions, including a subcommittee thereof, provided that the Board may take any action designated as a Committee action hereunder.

 

3.8.           Companies Act - means the Irish Companies Act 2014, as amended from time to time.

 

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3.9.           Company - means Smurfit WestRock plc, an Irish public limited company with registration number 607515 having its registered office at Beech Hill, Clonskeagh , Dublin 4, D04 N2R2, Ireland, or its successor.

 

3.10.         Constitution - means the Company’s memorandum and articles of association, as amended from time to time.

 

3.11.         Effective Time - has the meaning set forth in Section 2 of the Plan.

 

3.12.         Eligible Employee - means any employee who has been designated by the Company or an Affiliate as eligible to participate in the Company’s annual short-term incentive program.

 

3.13.         Exchange Act - means the U.S. Securities Exchange Act of 1934, as amended from time to time.

 

3.14.         Group - means the Company and all Affiliates of the Company.

 

3.15.         Officer - means a person who is an officer of the Company within the meaning of Rule 3b-7 under the Exchange Act and/or within the meaning of the Companies Act.

 

3.16.         Performance Period - means the Company’s fiscal year, or such other period designated by the Committee. The Performance Period for the year in which the Effective Time occurs shall be the period from the Effective Time through the last day of the Company’s fiscal year in which the Effective Time occurs.

 

3.17.         Plan - means this Smurfit WestRock plc Annual Short-Term Incentive Plan.

 

3.18.         Section 409A - means Section 409A of the Code.

 

3.19.         Stub Period - means the portion of the Performance Period that ends on the date of the Change in Control.

 

4.Administration

 

The Plan shall be administered by the Committee. The Committee shall have the authority in its sole and absolute discretion, subject to, and not inconsistent with, the express provisions of the Plan and Applicable Law, to administer the Plan (including all related Plan documents) and to exercise all the powers and authorities either specifically granted to it under the Plan or necessary or advisable in the administration of the Plan, including, without limitation, to determine who should be granted Awards and the amount of the Awards; to determine the time or times at which Awards shall be granted; to determine the terms, conditions, restrictions and performance criteria, including performance goals, relating to any Award; to determine whether, to what extent, and under what circumstances an Award may be settled, cancelled, forfeited, surrendered or varied; to increase or decrease the value of an Award to differentiate the performance of individual Eligible Employees and/or business or functional units of the Company; to make adjustments in performance goals or results in recognition of unusual, unexpected, or non-recurring events, including mergers, acquisitions and dispositions, or in response to changes in applicable laws, regulations, or accounting principles, or for any other reason; to construe and interpret the Plan and any Plan document; to prescribe, amend and rescind rules and regulations relating to the Plan; to determine the terms and provisions of any Award documents; and to make all other determinations deemed necessary or advisable for the administration of the Plan. All decisions, determinations and interpretations of the Committee shall be final and binding on all persons, including the Company, Affiliates of the Company, Eligible Employees (or any person claiming any rights under the Plan from or through any Eligible Employee) and any shareholder.

 

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Subject to the limitations of the Companies Act and the Constitution, the Committee may delegate to one or more Officers of the Company such duties under the Plan as it may deem advisable, and for all purposes of the Plan, such Officer(s) shall be treated as the Committee; provided, however, that the Committee shall administer the Plan for executive officers of the Company (within the meaning of Rule 3b-7 under the Exchange Act). No Officer may designate himself or herself as an Award recipient under any authority delegated to the Officer.

 

5.Eligibility

 

Any Eligible Employee may be approved by the Committee to receive an Award under the Plan. The Committee has the sole and absolute discretion to determine which Eligible Employees will be granted Awards under the Plan.

 

6.Performance Goals

 

Performance goals may consist of financial, operational, strategic, and sustainability performance measures for the Company, the Group, an Affiliate and/or any business or functional unit thereof; individual performance goals for Eligible Employees; and/or such other goals as may be determined by the Committee. Performance goals shall be set prior to, or reasonably promptly following, the start of the Performance Period and such performance goals shall be communicated to Eligible Employees in writing.

 

7.Amounts Available for Awards

 

The target annual short-term incentive amount shall be expressed as a percentage of the Eligible Employee’s annual salary in effect on October 1 during the Performance Period (or, for purposes of Section 10, the first day of the month immediately preceding the month in which a Change in Control occurs), unless otherwise determined by the Committee.

 

8.Payment of Awards

 

(a)             The grant and payment of any Awards shall be at the sole and absolute discretion of the Committee and, whether during employment or on termination, an Eligible Employee has no right to receive an Award. The Committee’s decisions regarding the amount of each Award shall be final, binding and conclusive for all purposes and need not be consistent among Eligible Employees. If the Company pays an Award to an Eligible Employee in respect of a particular Performance Period or Performance Periods, this shall not confer upon any Eligible Employee any right to payment for future Awards, whether at the same level, any level or at all.

 

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(b)             Payments, if any, due in respect of Awards shall be paid in a lump sum in cash. Cash payments made in respect of Awards will be paid as soon as administratively practicable following the end of the applicable Performance Period and the Committee’s determination of the achievement of the underlying performance goals, and, for Eligible Employees on a United States-based payroll or otherwise subject to taxation in the United States, no later than the 15th day of the third month following the end of the Performance Period.

 

(c)             Unless otherwise determined by the Committee and subject to Section 10 or Section 13 hereof and any rules established under the Plan from time to time, in order to be eligible to receive an Award, as of the payment date of such Award, an Eligible Employee must (i) be employed by the Company or an Affiliate, (ii) not be under notice of termination (whether from the Company or an Affiliate, or from the Eligible Employee), and (iii) not be subject to any disciplinary sanction.

 

(d)            The Committee may, in its sole and absolute discretion, permit Eligible Employees who are on a United States-based payroll to defer the payment of Awards in accordance with and subject to the terms of one or more deferred compensation plans sponsored by the Company or an Affiliate.

 

9.Clawback

 

All Awards and all payments made under the Plan shall be subject to (a) the requirements of Applicable Law, (b) any compensation recoupment or “clawback” policy of the Company providing for the recovery of compensation, as such policy is in effect from time to time, and (c) any “clawback” provisions in an Eligible Employee’s terms of employment (as applicable) as may be adopted from time to time by the Company, all to the extent determined by the Committee in its sole and absolute discretion to be applicable to an Eligible Employee.

 

10.Change in Control

 

Notwithstanding anything to the contrary in the Plan, upon a Change in Control, the Plan shall terminate and each Eligible Employee shall be entitled to a lump sum cash payment for the Stub Period subject to the requirements set out below. The payment calculated prior to any proration to account for the Stub Period shall be the greater of (i) the Eligible Employee’s target bonus amount for the Performance Period and (ii) such amount determined by the Committee based upon actual performance over the portion of the Performance Period completed as of the most practicable date prior to the Change in Control and projecting such performance to the end of the Performance Period. The proration will be determined by dividing the number of days completed in the Stub Period immediately prior to the date of the Change in Control by the total number of days in the Performance Period. Payments due as a result of the termination of the Plan upon a Change in Control shall be made within 30 days following the date of the Change in Control and shall be made to all Eligible Employees who were employed by the Company or an Affiliate of the Company immediately prior to the date of the Change in Control regardless of whether they are still employed on the payment date.

 

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11.Amendment and Termination of the Plan

 

The Board or the Committee shall have the right at any time to amend, suspend, discontinue or terminate the Plan; provided, however, that no amendment adopted in connection with or in anticipation of a Change in Control shall adversely affect an Eligible Employee’s entitlement to an Award for the Stub Period after a Change in Control. For the avoidance of doubt, neither the Board nor the Committee is under any obligation to operate a bonus scheme the same or similar to the Plan or at all.

 

12.Data Privacy

 

(a)             Compliance with Applicable Data Protection Laws. In administering the Plan, the Company shall comply with any Applicable Laws that govern or otherwise apply to personal data processed in connection with the Plan, including the General Data Protection Regulation (Regulation (EU) No 2016/679) (the “GDPR”) and the Irish Data Protection Act 2018 (the “DPA”), in each case as amended, supplemented or replaced from time to time.

 

(b)             Information Notice. Before an individual becomes an Eligible Employee in the Plan, the Company (or the Committee on its behalf) shall make available to the relevant Eligible Employee a privacy notice, which provides information in relation to the processing of personal data in connection with the Plan and complies with the transparency requirements of the GDPR and the DPA.

 

(c)             Acknowledgement of Receipt of Transparency Notice. It shall be a term and condition of participation in the Plan that an Eligible Employee acknowledges the receipt of the information provided in accordance with this Section 12 and that he or she has read and understood the privacy notice provided to him or her.

 

(d)             Engagement of Processors. If the Company engages any other party to process personal data on its behalf in connection with the Plan and / or any Awards, the Company shall enter into an agreement with that party in accordance with Article 28 of the GDPR prior to the processing taking place.

 

(e)             International Transfers. The Company shall not transfer any personal data, processed in connection with the Plan and / or any Awards, outside the European Economic Area other than in accordance with the GDPR, including by implementing an appropriate safeguarding mechanism and conducting a transfer risk assessment (if required).

 

13.Miscellaneous

 

13.1.         Section 409A. This Section shall apply to Eligible Employees on a United States-based payroll or otherwise subject to taxation in the United States. Each Award is intended to be excluded from coverage under Section 409A as a short-term deferral unless, and only to the extent that, a deferral election for such Award is made pursuant to a deferred compensation plan sponsored by the Company or an Affiliate. If an Award does not qualify as a short-term deferral or for another exemption under Section 409A, it is intended that such Award will be paid in a manner that satisfies the requirements of Section 409A, and in the event any Award is payable to a “specified employee” (as determined in accordance with the methodology established by the Company in accordance with Section 409A) on account of the specified employee’s “separation from service” (within the meaning of Section 409A) and would be payable during the six-month period thereafter, such Award shall instead be paid on the first business day of the 7th month following the separation from service (or upon the earlier death of the specified employee) to the extent necessary to avoid the imposition of any additional taxes or penalties under Section 409A.

 

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13.2.          Additional Compensation Arrangements. Nothing contained in the Plan shall prevent or limit the Company or any Affiliate from adopting other or additional compensation arrangements for any employee.

 

13.3.          Other Governing Documents. The Committee may require an Eligible Employee, as a condition to receiving an Award under the Plan, to sign any additional documentation as reasonably required by the Committee for compliance with Applicable Law and orderly administration of the Plan.

 

13.4.          No Contract of Employment. The Plan shall not constitute a contract of employment, and adoption of the Plan or the payment of Awards shall not confer upon any employee any right to continued employment or payment for future Awards, nor shall it interfere in any way with the right of the Company or any Affiliate to terminate the employment of any employee at any time. Participation in the Plan is voluntary and at the sole and absolute discretion of the Company. The Plan shall not be deemed to constitute part of an Eligible Employee’s terms and conditions of employment including, without limitation, compensation under such employment.

 

13.5.          Plan Expenses. All expenses and costs in connection with the operation of the Plan shall be borne by the Company or an Affiliate and no part thereof shall be charged against Awards or to Eligible Employees.

 

13.6.          Withholding. The Company or an Affiliate shall have the right to deduct from Awards any applicable taxes, and any other deductions, required to be withheld with respect to such payments. In addition, the Company or an Affiliate also may withhold such amounts from other amounts payable by the Company or an Affiliate, subject to applicable law.

 

13.7.          No Limitation on Corporate Actions. Nothing contained in the Plan shall be construed to prevent the Company or an Affiliate from taking or not taking any corporate action, whether or not such action could have an adverse effect on any Awards made under the Plan. No Eligible Employee, beneficiary or other person shall have any claim as a result of any such action.

 

13.8.          Unfunded Plan. The Plan is intended to constitute an unfunded plan for incentive compensation. Prior to the payment of any Award, nothing contained herein shall give any rights that are greater than those of a general creditor of the Company or an Affiliate.

 

13.9.          Choice of Law and Venue. The Plan, all Awards granted thereunder, and all determinations made and actions taken thereunder, shall be governed by and interpreted in accordance with the laws of Ireland without giving effect to principles of conflicts of law. Eligible Employees irrevocably consent to the nonexclusive jurisdiction and venue of the courts of Ireland.

 

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13.10.        Indemnification.

 

(a)            Subject to section 235 of the Companies Act and compliance with other Applicable Law, each person who is or was a member of the Board, the Committee, or a committee of the Board or an Officer of the Company to whom authority to administer the Plan was delegated in accordance with the Plan, will be indemnified and held harmless by the Company against and from any loss, cost, liability or expense that may be imposed upon or reasonably incurred by such person in connection with or resulting from any claim, action, suit or proceeding to which such person may be a party or in which such person may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by such person in settlement thereof, with the Company’s approval, or paid by such person in satisfaction of any judgment in any such claim, action, suit or proceeding against such person, unless such loss, cost, liability or expense is a result of such person’s own willful misconduct or except as expressly provided by statute; provided, however, that such person will give the Company an opportunity, at its own expense, to handle and defend the same before such person undertakes to handle and defend it on such person’s own behalf.

 

(b)            The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such person may be entitled under the Constitution, as a matter of law, or otherwise, or of any power that the Company may have to indemnify or hold harmless.

 

13.11.        Non-transferability. A person’s rights and interests under the Plan, including any Award previously made to such person or any amounts payable under the Plan, may not be sold, assigned, pledged, transferred or otherwise alienated or hypothecated except, in the event of death, to a designated beneficiary as may be provided in the Plan, or in the absence of such designation, by will or the laws of descent and distribution.

 

13.12.        Beneficiaries. To the extent the Committee permits beneficiary designations, any payment of Awards under the Plan to a deceased Eligible Employee shall be paid to the beneficiary duly designated by the Eligible Employee in accordance with the Company’s or an Affiliate’s practices. If no such beneficiary has been designated or survives the Eligible Employee, payment shall be made to the Eligible Employee’s estate. A beneficiary designation, if such are permitted, may be changed or revoked by an Eligible Employee at any time, provided the change or revocation is filed with the Committee prior to the Eligible Employee’s death.

 

13.13.        Electronic Communication. Any document required to be delivered under the Plan, including under Applicable Law, may be delivered in writing or electronically. Signature also may be electronic if permitted by the Company.

 

13.14.        Successor. All obligations of the Company under the Plan, with respect to Awards granted hereunder, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business or assets of the Company.

 

13.15.        Relationship to Other Benefits. No payment of any benefit under the Plan shall be taken into account in determining any benefits pursuant to any pension, retirement, savings, profit sharing, group insurance, termination programs and/or indemnities or severance payments, welfare or other benefit plan of the Company or any Affiliate, except to the extent otherwise expressly provided in writing in such other plan or arrangement.

 

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IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute the Plan to evidence its adoption of the Plan.

 

SMURFIT WESTROCK PLC
   
 By:/s/ Ken Bowles
 Date:July 5, 2024

 

 

 

 

Exhibit 10.16

 

SMURFIT WESTROCK PLC

 

EXECUTIVE SEVERANCE PLAN

 

 

 

 

SECTION 1
PURPOSE

 

The Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of Smurfit WestRock plc desires to provide severance benefits to select executives upon certain terminations of employment in accordance with the terms and conditions of the Smurfit WestRock Executive Severance Plan (this “Plan”).

 

The Committee also recognizes that the possibility of a Change in Control (as defined below) of the Company, and the uncertainty it could create, may result in the loss or distraction of executives of the Company to the detriment of the Company and its shareholders. The Committee considers the avoidance of such loss and distraction to be essential to protecting and enhancing the best interests of the Company and its shareholders. The Committee also believes that when a Change in Control is perceived as imminent, or is occurring, the Board should be able to receive and rely on disinterested service from executives regarding the best interests of the Company and its shareholders without concern that employees might be distracted or concerned by the personal uncertainties and risks created by the perception of an imminent or occurring Change in Control.

 

Therefore, in order to fulfill the above purposes, this Plan was adopted by the Committee and shall become effective on the Effective Date (as defined below).

 

SECTION 2
DEFINITIONS

 

Certain capitalized terms used herein have the definitions given to such terms in the first place in which they are used. As used herein, the following capitalized words and phrases shall have the following respective meanings:

 

2.1            “Affiliate” means any entity controlled by, controlling or under common control with the Company.

 

2.2            “Annual Base Salary” means the annual base salary paid or payable, including any base salary that is subject to deferral, to the Participant by the Company or any of the Affiliates at the rate in effect immediately prior to the Date of Termination or, if the Date of Termination is during a Change in Control Period, the rate in effect (or required to be in effect before any diminution that is a basis of the Participant’s termination for Good Reason) immediately prior to the Change in Control, or, if higher, immediately prior to the Date of Termination.

 

2.3            “Applicable Law” means any applicable securities, federal, state, foreign, material local or municipal or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, listing rule, regulation, judicial decision, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any governmental body (including under the authority of any applicable self- regulating organization such as the New York Stock Exchange).

 

2.4            “Board” means the Board of Directors of the Company;

 

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2.5            “Business Day” means any day, other than a Saturday, Sunday or a day on which banks in Ireland, England or in the State of New York are authorized or required by Applicable Law to be closed.

 

2.6            “Cause” means the occurrence of any one or more of the following (i) the Participant’s conviction or plea of nolo contendere of a felony or equivalent offense under Applicable Law, (ii) the Participant’s material and continued disregard or failure to perform the substantive elements of the Participant’s responsibilities and duties as an employee of the Company or an Affiliate, (iii) willful misconduct by the Participant in the performance of the Participant’s duties as an employee of the Company or an Affiliate, (iv) the Participant’s material violation of the Company’s or an Affiliate’s code of conduct or other material employee policy, (v) the Participant’s misappropriation or embezzlement of any funds or property of the Company or an Affiliate, commitment of fraud with respect to the Company or an Affiliate, or engagement in any act or acts of dishonesty relating to the Participant’s employment with the Company or an Affiliate, or (vi) through willful misconduct, personal dishonesty or gross negligence, the Participant engages in an act or course of conduct that causes substantial injury to the Company or an Affiliate; provided that, any condition or conditions, as applicable, referenced in clauses (ii) through (vi) of the foregoing shall not (if a cure is reasonably possible in the circumstances) constitute Cause unless both (x) the Company provides written notice to the Participant of such condition(s) claimed to constitute Cause, and (y) the Participant fails to remedy such condition(s) within thirty (30) days of receiving such written notice thereof. The determination of whether such condition(s) claimed to constitute Cause has occurred and has been remedied shall be made by the Committee in its reasonable, good faith discretion.

 

2.7            “Change in Control” shall have the meaning given in the Company’s 2024 Long-Term Incentive Plan (or any successor plan).

 

2.8            “Change in Control Period” means the period commencing on, and including, the date of a Change in Control and ending on, and including, the second anniversary of the date of such Change in Control.

 

2.9            “CIC Benefit Continuation Period” means the CIC Benefit Continuation Period set forth on Annex A for the applicable Tier set forth in the Participant’s Participation Notice.

 

2.10          “CIC Multiple” means the CIC Multiple set forth on Annex A for the applicable Tier set forth in the Participant’s Participation Notice.

 

2.11          “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and all regulations, interpretations, and administrative guidance issued thereunder.

 

2.12          “Committee” means the Compensation Committee of the Board or a committee of the Board otherwise named but performing similar functions, including a subcommittee thereof, provided that the Board may take any action designated as a Committee action hereunder.

 

2.13          “Company” means Smurfit WestRock plc, an Irish public limited company with registration number 607515 having its registered office at Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland and any successor(s) thereto or, if applicable, the ultimate parent of any such successor.

 

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2.14          “Date of Termination” means the date of receipt of a Notice of Termination from the Company or the Participant, as applicable, or any later date specified in the Notice of Termination (subject to the notice and cure periods in the definition of “Good Reason”). If the Participant’s employment is terminated by reason of death, the Date of Termination shall be the date of death of the Participant. If the Participant’s employment is terminated by reason of Disability, the Date of Termination shall be the date on which the Participant becomes eligible for benefits under the Company’s (or as, relevant, any Affiliate’s) long-term disability plan.

 

2.15          “Disability” means “permanent and total disability” as defined in Section 22(e)(3) of the Code.

 

2.16          “Effective Date” means the closing date of the transaction contemplated by the Transaction Agreement, dated as of September 12, 2023, among the Company, Smurfit Kappa Group Plc, WestRock Company, and the other party named therein.

 

2.17          “Good Reason” means the occurrence of any of the following events or circumstances during a Change in Control Period and without the Participant’s prior written consent:

 

(a)            a reduction of the Participant’s Annual Base Salary from that in effect immediately prior to the Change in Control (or if higher, that in effect at any time thereafter);

 

(b)            a material reduction in the Participant’s target annual cash bonus opportunity or target annual long-term incentive compensation opportunity, in each case, from that in effect immediately prior to the Change in Control (or, if higher, that in effect at any time thereafter);

 

(c)            a material, adverse change in the Participant’s title, reporting relationship, authority, duties, or responsibilities from those in effect immediately prior to the Change in Control (including the loss of public company officer duties);

 

(d)            the Company’s requirement that the Participant be based at a location that is more than 30 miles from the location of the Participant’s employment immediately prior to the Change of Control; or

 

(e)            the failure of the Company to obtain an agreement from any successor to the Company to assume and agree to perform the obligations under this Plan with respect to the Participant.

 

In order to invoke a termination for Good Reason, the Participant shall provide written notice to the Company of the existence of one or more of the conditions described in clauses (a) through (e) within ninety (90) days of the Participant first becoming aware of the initial existence of such condition, describing in reasonable detail such condition, and the Company shall have thirty (30) days following receipt of such written notice (the “Cure Period”) during which it may remedy the condition. In the event that the Company fails to remedy the condition constituting Good Reason during the applicable Cure Period, the Participant’s resignation from employment, must occur, if at all, within thirty (30) days following the earlier of (x) the end of the Cure Period or (y) the date the Company provides written notice to the Participant that it does not intend to cure such condition. The Participant’s mental or physical incapacity following the occurrence of an event described above in clauses (a) through (e) shall not affect the Participant’s ability to terminate employment for Good Reason and the Participant’s death following delivery of a Notice of Termination for Good Reason shall not affect the Participant’s estate’s entitlement to the severance payments and benefits provided hereunder upon a termination of employment for Good Reason.

 

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2.18          “Non-CIC Benefit Continuation Period” means the Non-CIC Benefit Continuation Period set forth on Annex A for the applicable Tier set forth in the Participant’s Participation Notice.

 

2.19          “Non-CIC Multiple” means the Non-CIC Multiple set forth on Annex A for the applicable Tier set forth in the Participant’s Participation Notice.

 

2.20          “Non-U.S. Participant” means any Participant other than a U.S. Taxpayer Participant.

 

2.21          “Notice of Termination” means a written notice delivered to the other party that (a) indicates the specific termination provision in this Plan relied upon, (b) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Participant’s employment under the provision so indicated, and (c) if the Date of Termination is other than the date of receipt of such notice, specifies the Date of Termination (which Date of Termination shall be: (i) for any U.S. Taxpayer Participant, not more than ninety (90) days after the giving of such notice; or (ii) for any Non-U.S. Participant, no later than the expiry of their contractual notice period). Any termination by the Company for Cause or by the Participant for Good Reason shall be communicated by a Notice of Termination to the other party hereto given in accordance with Section 11.6 of this Plan. The failure by the Participant or the Company to set forth in the Notice of Termination any fact or circumstance that contributes to a showing of Good Reason or Cause shall not waive any right of the Participant or the Company, respectively, hereunder or preclude the Participant or the Company, respectively, from asserting such fact or circumstance in enforcing the Participant’s or the Company’s respective rights hereunder. For the avoidance of doubt, any notice served under this Plan will not affect the Company’s or any Affiliate’s ability to exercise any of its rights in relation to termination or notice under the relevant Participant’s contract of employment.

 

2.22          “Participant” means each executive employed by the Company or any Affiliate who is selected by the Committee for participation in this Plan and party to a Participation Notice.

 

2.23          “Participation Notice” means a written notice, substantially in the form attached hereto as Exhibit A, indicating that the executive identified therein has been designated as a Participant and specifying such executive’s level of participation in this Plan.

 

2.24          “Person” means any individual, any corporation, partnership, trust, unincorporated organization, association, limited liability company or other entity or group.

 

2.25          “Plan” means this Smurfit WestRock Executive Severance Plan as the same may be amended from time to time.

 

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2.26          “Qualifying CIC Termination” means any termination of a Participant’s employment, during a Change in Control Period (a) by the Participant for Good Reason or (b) by the Company or as relevant any Affiliate other than for Cause, death or Disability.

 

2.27            “Qualifying Non-CIC Termination” means any termination of a Participant’s employment (a) by the Company or as relevant any Affiliate other than for Cause, death or Disability, and (b) that is not a Qualifying CIC Termination.

 

2.28          “Target Annual Bonus” means the Participant’s target annual cash bonus (if applicable, as specified under the Participant’s contract of employment) in effect immediately prior to the Date of Termination or if the Date of Termination is during a Change in Control Period, the Participant’s target annual cash bonus in effect (or required to be in effect before any diminution that is a basis of the Participant’s termination for Good Reason) immediately prior to the Change in Control, or, if higher, immediately prior to the Date of Termination.

 

2.29          “Tier” means the designated level of the Participant’s participation in this Plan, as set forth in the Participant’s Participation Notice.

 

2.30          “U.S. Taxpayer Participant” means any Participant whose compensation income is subject to taxation in the United States of America.

 

SECTION 3
SEPARATION BENEFITS

 

3.1            Qualifying Non-CIC Termination. If a Participant experiences a Qualifying Non-CIC Termination, the Company shall pay or provide to the Participant the following payments and benefits at the time or times set forth below, subject to Section 10 and subject to (other than in the case of the Accrued Obligations (as defined below in clause 3.1(a)) and Other Benefits (as defined below in clause 3.1(e))) the Participant’s execution of a general release of claims in the form delivered to the Participant by the Company within five (5) days following the Date of Termination (provided that the form of general release of claims that will apply to all CIC Qualifying Terminations shall be approved by the Compensation Committee prior to the applicable Change in Control and shall not thereafter be subject to modification by the Company) (the “Release Agreement”) and such Release Agreement becoming effective and irrevocable in accordance with its terms no later than the deadline specified therein:

 

(a)            a lump sum payment in cash payable within thirty (30) days following the Date of Termination, equal to the sum of (i) the Participant’s accrued but unpaid Annual Base Salary through the Date of Termination, (ii) any annual incentive payment earned by the Participant for a performance period that was completed prior to the Date of Termination where such payment remains due and outstanding, (iii) subject to any vacation or other relevant leave policy in force from time to time, any accrued and unused vacation pay or other paid time off, and (iv) subject to any expenses policy in force from time to time, any business expenses incurred by the Participant that are unreimbursed as of the Date of Termination, in each case, to the extent not theretofore paid (the sum of the amounts described in clauses (i), (ii), (iii) and this clause (iv) shall be hereinafter referred to as the “Accrued Obligations”); provided that, for any U.S. Taxpayer Participant, notwithstanding the foregoing, in the case of clauses (i) and (ii), if such U.S. Taxpayer Participant has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or annual incentive payment described in clause (i) or (ii) above, then for all purposes of this Section 3 (including, without limitation, Sections 3.1(a) and 3.2(a)), such deferral election, and the terms of the applicable arrangement, shall apply to the same portion of the amount described in such clause (i) or (ii), and such portion shall not be considered as part of the “Accrued Obligations,” but shall instead be an “Other Benefit” (as defined below);

 

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(b)            a lump sum payment payable in cash payable in accordance with Section 3.3 equal to the product of (i) the Target Annual Bonus and (ii) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs from the first day of such fiscal year to and including the Date of Termination, and the denominator of which is the total number of days in such fiscal year, reduced by any annual bonus payment to which the Participant has been paid or is otherwise entitled, in each case, for the same period of service, and subject to any applicable deferral election on the same basis as set forth in the proviso to Section 3.1(a) (the “Prorated Bonus”);

 

(c)            a lump sum payment in cash payable in accordance with Section 3.3 equal to the product of (i) the Non-CIC Multiple and (ii) the sum of (A) the Participant’s Annual Base Salary and (B) the Target Annual Bonus;

 

(d)            a lump sum payment in cash payable in accordance with Section 3.3 equal to the amount of the employer contribution, based on the rates and coverage elections in effect at the Date of Termination, that would be been provided towards healthcare benefit coverage (including medical, prescription, dental and vision) pursuant to a plan sponsored by the Company or an Affiliate as of immediately prior to the Date of Termination for the Participant and the Participant’s dependents who were covered by such healthcare benefit coverage as of immediately prior to the Date of Termination, during the Non-CIC Benefit Continuation Period had the Participant remained employed with the Company or any relevant Affiliate during such period (the “Healthcare Benefit”), provided that this clause will not apply to any Participant who did not receive healthcare benefit coverage pursuant to a plan sponsored by the Company or an Affiliate as of immediately prior to the Date of Termination; and

 

(e)            to the extent not theretofore paid or provided, any other amounts or benefits required to be paid or provided or which the Participant is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and Affiliates, including amounts credited to the Participant’s account under any deferred compensation plan, payable pursuant to the terms of such plan, program, policy or practice (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).

 

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3.2            Qualifying CIC Termination. If a Participant experiences a Qualifying CIC Termination, the Company shall pay or provide to the Participant the following payments and benefits at the time or times set forth below, subject to Section 10 and subject to (other than in the case of the Accrued Obligations and Other Benefits) the Participant’s execution of a Release Agreement and such Release Agreement becoming effective and irrevocable in accordance with its terms no later than the seventieth (70th) day following the Date of Termination:

 

(a)            a lump sum payment in cash payable within thirty (30) days following the Date of Termination equal to the Accrued Obligations;

 

(b)            a lump sum payment in cash payable in accordance with Section 3.3 equal to the Prorated Bonus;

 

(c)            a lump sum payment in cash payable in accordance with Section 3.3 equal to the product of (i) the CIC Multiple and (ii) the sum of (A) the Participant’s Annual Base Salary and (B) the Target Annual Bonus;

 

(d)            the Healthcare Benefit (except that all references to “Non-CIC Benefit Continuation Period” in the definition thereof shall be “CIC Benefit Continuation Period” instead); and

 

(e)            Other Benefits payable pursuant to the terms of any applicable plan, program, policy or practice or contract or agreement.

 

3.3            The cash payments contemplated by Sections 3.1(b), 3.1(c) and 3.1(d) in the case of a Qualifying Non-CIC Termination or by Sections 3.2(b), 3.2(c), and 3.2(d) in the case of a Qualifying CIC Termination, will be paid within thirty (30) days following the date that the Release Agreement becomes effective and irrevocable in accordance with its terms, but in the case of a U.S. Taxpayer Participant, in no event later than two and one-half months following the end of the calendar year in which the applicable Qualifying Non-CIC Termination or Qualifying CIC Termination occurs.

 

SECTION 4
GOLDEN PARACHUTE EXCISE TAX

 

4.1            The provisions of this Section 4 shall apply to U.S. Taxpayer Participants only.

 

4.2            If a Participant has a Qualifying CIC Termination, anything in this Plan to the contrary notwithstanding, in the event that the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Participant to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Plan (the “Plan Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Plan Payments shall be so reduced only if the Accounting Firm determines that the Participant would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Plan Payments were so reduced. If the Accounting Firm determines that the Participant would not have a greater Net After-Tax Receipt of aggregate Payments if the Plan Payments were so reduced, the Participant shall receive all Plan Payments to which the Participant is entitled hereunder.

 

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4.3            If the Accounting Firm determines that aggregate Plan Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 4 shall be binding upon the Company and the Participant and shall be made as soon as reasonably practicable and in no event later than fifteen (15) days following the Date of Termination. For purposes of reducing the Plan Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Plan (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the Plan Payments and benefits that have a Parachute Value in the following order: Section 3.2(b), Section 3.2(c), Section 3.2(d) and Section 3.2(e) in each case, beginning with payments or benefits that do not constitute nonqualified deferred compensation and reducing payments or benefits in reverse chronological order beginning with those that are to be paid or provided the farthest in time from the Date of Termination, based on the Accounting Firm’s determination. All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Company.

 

4.4            To the extent requested by the Participant, the Company shall cooperate with the Participant in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Participant (including, without limitation, the Participant’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code)), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.

 

4.5            The following terms shall have the following meanings for purposes of this Section 4:

 

(a)            “Accounting Firm” shall mean a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to a Change in Control for purposes of making the applicable determinations hereunder, which firm shall not, without the Participant’s consent, be a firm serving as accountant or auditor for the individual, entity or group effecting the Change in Control.

 

(b)            “Net After-Tax Receipt” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Participant with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Participant’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Participant in the relevant tax year(s).

 

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(c)            “Parachute Value” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the excise tax under Section 4999 of the Code will apply to such Payment.

 

(d)            “Payment” shall mean any payment, benefit or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Participant, whether paid, payable or provided pursuant to this Plan or otherwise.

 

(e)            “Safe Harbor Amount” shall mean the maximum Parachute Value of all Payments that the Participant can receive without any Payments being subject to the Excise Tax.

 

4.6            The provisions of this Section 4 shall survive the expiration of this Plan.

 

SECTION 5
NONDUPLICATION; LEGAL FEES; NON-EXCLUSIVITY OF RIGHTS

 

5.1            Nonduplication. The amount of any payments or benefits under this Plan will be offset and reduced (but not below zero) by the full amount and/or value of any severance benefits, compensation and benefits provided during any notice period, pay in lieu of notice, mandated termination indemnities, or similar benefits that the Participant may separately be entitled to receive from the Company or any Affiliate based on any employment agreement, confidential information protection agreement or other contractual obligation (whether individual or union/works council) or statutory scheme (such benefits collectively, “Local Benefits”). If Local Benefits are greater than the payments or benefits under this Plan, the Participant shall receive only the Local Benefits. If a U.S. Taxpayer Participant’s employment is terminated because of a plant shutdown or mass layoff or other event to which the Worker Adjustment and Retraining Notification Act of 1988 or similar state law (collectively, “WARN”) applies, then the amount of the severance payment under Sections 3.1(c) and 3.2(c) of this Plan to which the Participant is entitled shall be reduced, dollar for dollar, by the amount of any pay provided to the Participant in lieu of the notice required by WARN, and the Non-CIC Benefits Continuation Period or CIC Benefits Continuation Period, as applicable, shall be reduced for any period of benefits continuation or pay in lieu thereof provided to Participant due to the application of WARN.

 

5.2            Legal Fees. Solely following a Change in Control, the Company agrees to pay as incurred (within ten (10) Business Days following the Company’s receipt of a valid invoice from the Participant), to the full extent permitted by law, all legal fees and expenses that the Participant may reasonably incur as a result of any contest by the Company, the Participant or others of the validity or enforceability of, or liability under, any provision of this Plan or any guarantee of performance thereof (including as a result of any contest (regardless of the outcome) by the Participant about the amount of any payment pursuant to this Plan), plus, in each case, interest on any delayed payment to which the Participant is ultimately determined to be entitled at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”) based on the rate in effect for the month in which such legal fees and expenses were incurred.

 

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SECTION 6
AMENDMENT AND TERMINATION

 

This Plan may be terminated or amended in any respect by resolution adopted by the Committee; provided that (a) no amendment or termination that adversely impacts the rights of a Participant will take effect sooner than one year after written notice is provided to the impacted Participant subject to the requirements of Applicable Law; (b) no amendment or termination shall negatively affect the rights of a Participant who has incurred a Qualifying CIC Termination or a Qualifying Non-CIC Termination; (c) in connection with or in anticipation of a Change in Control, this Plan may not be terminated or amended in any manner that would adversely affect the rights of Participants in connection with a Qualifying CIC Termination; and (d) following a Change in Control, this Plan shall continue in full force and effect and shall not terminate, expire or be amended until after all Participants who become entitled to any payments or benefits hereunder in connection with a Qualifying CIC Termination shall have received such payments and benefits in full pursuant to Section 3.

 

SECTION 7
PLAN ADMINISTRATION

 

7.1            General. The Committee is responsible for the general administration and management of this Plan (the committee acting in such capacity, the “Plan Administrator”) and shall have all powers and duties necessary to fulfill its responsibilities, including, but not limited to, the discretion to interpret and apply the provisions of this Plan and to determine all questions relating to eligibility for benefits under this Plan, to interpret or construe ambiguous, unclear, or implied (but omitted) terms in any fashion it deems to be appropriate, and to make any findings of fact needed in the administration of this Plan. Following a Change in Control, the validity of any such interpretation, construction, decision, or finding of fact shall be given de novo review if challenged in court, by arbitration, or in any other forum, and such de novo standard shall apply notwithstanding the grant of full discretion hereunder to the Plan Administrator or characterization of any such decision by the Plan Administrator as final or binding on any party.

 

7.2            Not Subject to ERISA. This Plan does not require an ongoing administrative scheme and, therefore, is intended to be a payroll practice which is not subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). However, if it is determined that this Plan is subject to ERISA, (i) it shall be considered to be an unfunded plan maintained by the Company primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees (a “top-hat plan”), and (ii) it shall be administered in a manner which complies with the provisions of ERISA that are applicable to top-hat plans.

 

7.3            Indemnification. To the extent permitted by law, the Company shall indemnify the Plan Administrator from all claims for liability, loss, or damage (including the payment of expenses in connection with defense against such claims) arising from any act or failure to act in connection with this Plan.

 

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SECTION 8
SUCCESSORS; ASSIGNMENT

 

8.1            Successors. The Company shall require any corporation, entity, individual or other Person who is the successor (whether direct or indirect by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all the business and/or assets of the Company to expressly assume and agree to perform, by a written agreement in form and in substance satisfactory to the Company, all of the obligations of the Company under this Plan. As used in this Plan, the term “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Plan by operation of law, written agreement or otherwise.

 

8.2            Assignment of Rights. It is a condition of this Plan, and all rights of each Person eligible to receive benefits under this Plan shall be subject hereto, that no right or interest of any such Person in this Plan shall be assignable or transferable in whole or in part, except by will or the laws of descent and distribution or other operation of law, including, but not by way of limitation, lawful execution, levy, garnishment, attachment, pledge, bankruptcy, alimony, child support or qualified domestic relations order.

 

SECTION 9
Confidentiality

 

9.1            As used in this Plan, “Confidential Information” means any information concerning the Company or any Affiliate or otherwise concerning the Company that is not ordinarily provided to Persons who are not employees of the Company except pursuant to a confidentiality agreement, provided that any information that is or becomes publicly known, other than as a result of a breach of this provision by a Participant, shall not be or shall cease to be Confidential Information. A Participant shall not disclose Confidential Information to any Person other than: (a) an officer, director or employee of the Company or any Affiliate who needs to know such information in his or her capacity as such, or (b) an attorney who has been retained by and represents the Company or an Affiliate with respect to matters relating to the Company and in accordance with attorney / client privilege. A Participant shall not use Confidential Information for any purpose unrelated to duties as an officer, director or employee of the Company or any Affiliate. Nothing in this Plan will prohibit a Participant from disclosing Confidential Information as necessary to comply with valid legal process or investigations or to fulfill a legal duty of the Participant.

 

9.2            Notwithstanding anything to the contrary, nothing in this Plan limits any Participant’s ability to communicate with any government agency, legislative body or self-regulatory organization or otherwise participate in or fully cooperate with any investigation or proceeding that may be conducted by any government agency, legislative body or self-regulatory organization, including providing documents or other information or otherwise exercising any legally protected whistleblower rights, without notice to or approval from the Company, without risk of being held liable by the Company for financial penalties. This Plan also does not limit any Participant’s right to receive an award for information provided to any government agency, legislative body or self-regulatory organization. Furthermore, notwithstanding anything to the contrary, pursuant to the Defend Trade Secrets Act of 2016, no Participant shall be held criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a government official or attorney for the purpose of reporting or investigating a suspected violation of law, (ii) in a complaint or other document filed in a lawsuit or other proceeding, as long as such filing is made under seal or (iii) to an attorney representing the Participant in a claim for retaliation for reporting suspected violations of law.

 

12 

 

 

SECTION 10
SECTION 409A OF THE CODE

 

10.1            The provisions of this Section 10 shall apply to U.S. Taxpayer Participants only.

 

10.2            General. The obligations under this Plan are intended to comply with the requirements of Section 409A of the Code or an exemption or exclusion therefrom and shall in all respects be administered in accordance with Section 409A of the Code. Any payments that qualify for the “short-term deferral” exception, the separation pay exception or another exception under Section 409A of the Code shall be paid under the applicable exception to the maximum extent possible. For purposes of nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Plan shall be treated as a separate payment of compensation. All payments to be made upon a termination of employment under this Plan may only be made upon a “separation from service” under Section 409A of the Code to the extent necessary in order to avoid the imposition of penalty taxes on a Participant pursuant to Section 409A of the Code. In no event may a Participant, directly or indirectly, designate the calendar year of any payment under this Plan.

 

10.3            Reimbursements and In-Kind Benefits. Notwithstanding anything to the contrary in this Plan, all reimbursements and in-kind benefits provided under this Plan that are subject to Section 409A of the Code shall be made in accordance with the requirements of Section 409A of the Code, including, without limitation, where applicable, the requirement that (a) in no event shall the Company’s obligations to make such reimbursements or to provide such in-kind benefits apply later than the Participant’s remaining lifetime (or if longer, through the 20th anniversary of the Effective Date); (b) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (c) the reimbursement of eligible fees and expenses shall be made no later than the last day of the calendar year following the year in which the applicable fees and expenses were incurred; provided that the Participant shall have submitted an invoice for such fees and expenses at least ten (10) days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred; and (d) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

 

10.4            Delay of Payments. Notwithstanding any other provision of this Plan to the contrary, if a Participant is considered a “specified employee” for purposes of Section 409A of the Code (as determined in accordance with the methodology established by the Company as in effect on the Date of Termination), any payment or benefit that constitutes nonqualified deferred compensation within the meaning of Section 409A of the Code that is otherwise due to be paid to such Participant under this Agreement during the six-month period immediately following such Participant’s separation from service (as determined in accordance with Section 409A of the Code) on account of such Participant’s separation from service shall be accumulated and paid to such Participant with Interest (based on the rate in effect for the month in which the Participant’s separation from service occurs) on the first business day of the seventh month following the Participant’s separation from service (the “Delayed Payment Date”), to the extent necessary to avoid penalty taxes or accelerated taxation pursuant to Section 409A of the Code. If such Participant dies during the postponement period, the amounts and entitlements delayed on account of Section 409A of the Code shall be paid to the personal representative of his or her estate on the first to occur of the Delayed Payment Date or 30 calendar days after the date of such Participant’s death.

 

13 

 

 

SECTION 11
MISCELLANEOUS

 

11.1          Choice of Law and Venue. The Plan and all determinations made and actions taken pursuant hereto shall be governed by and interpreted in accordance with the laws of Ireland without giving effect to principles of conflicts of law. Participants irrevocably consent to the nonexclusive jurisdiction and venue of the courts of Ireland.

 

11.2          Withholding. The Company may withhold from any amount payable or benefit provided under this Plan such federal, state, local, foreign and other taxes, charges and/or social security payments (or similar liabilities) as are required to be withheld pursuant to any Applicable Law or regulation.

 

11.3          Gender and Plurals. Wherever used in this Plan document, words in the masculine gender shall include masculine or feminine gender, and, unless the context otherwise requires, words in the singular shall include the plural, and words in the plural shall include the singular.

 

11.4          Plan Controls. In the event of any inconsistency between this Plan document and any other communication regarding this Plan, this Plan document controls.

 

11.5          Not an Employment Contract. This Plan is not, and nothing herein shall be deemed to create, an employment contract between the Participant and the Company or any Affiliate. The Participant acknowledges that the rights of his or her employer remain wholly intact to change or reduce at any time and from time to time his or her compensation, title, responsibilities, location, and all other aspects of the employment relationship, or to discharge the Participant. The terms and conditions of employment of the Participant (including, but without limitation, compensation) shall not be affected in any way by the Participant’s participation in the Plan which shall not form part of such terms and conditions (either expressly or impliedly).

 

14 

 

 

11.6          Notices.

 

(a)            Any notice, request, demand, and other communication required to be delivered to the Company by a Participant hereunder shall be properly delivered to the Company when personally delivered by hand to, or actually received through registered mail or electronic mail (e-mail) (so long as confirmation of receipt of e-mail is requested or received) by:

 

Smurfit WestRock plc

Beech Hill

Clonskeagh

Dublin 4

D04 N2R2

Ireland
Attention: Gillian Carson-Callan

Email: [EMAIL ADDRESS]

 

(b)            Any notice required to be delivered to the Participant by the Company hereunder shall be properly delivered to the Participant when the Company delivers such notice by e-mail (so long as confirmation of receipt of e-mail is requested or received), personally or by placing said notice in registered or certified mail, return receipt requested, postage prepaid to that Participant’s last known address as reflected on the books and records of the Company.

 

11.7            Severability. If any provision of this Plan is held invalid or unenforceable, its invalidity or unenforceability shall not affect any other provisions of this Plan, and this Plan shall be construed and enforced as if such provision had not been included in this Plan. Further, the captions in this Plan are not part of the provisions hereof and shall have no force or effect. Notwithstanding any other provisions of this Plan to the contrary, neither the Company nor any Affiliate shall have any obligation to make any payment to the Participant hereunder to the extent, but only to the extent, that such payment is prohibited by the terms of any final order of a federal or state court or regulatory agency of competent jurisdiction; provided, however, that such an order shall not affect, impair, or invalidate any provision of this Plan not expressly subject to such order.

 

15 

 

 

Annex A

 

Tier Non-CIC
Multiple		 Non-CIC
Benefit
Continuation
Period 		CIC Multiple CIC Benefit
Continuation
Period
I 2x 2 years 3x 3 years
II 1.5x 1.5 years 2x 2 years
III 1x 1 year 1.5x 1.5 years

 

 

 

 

Exhibit A

 

Smurfit WestRock

 

Designation of Executive Severance Plan Participation

 

The Participant identified below has been selected to participate in the Smurfit WestRock Executive Severance Plan (the “Plan”), at the Tier level noted below. A copy of the Plan is attached.

 

By signing this designation, which is a condition to the Participant’s participation in the Plan, the Participant acknowledges and agrees that the Participant’s entitlement to benefits under the Plan is subject to the terms and conditions of the Plan as in effect from time to time.

 

Smurfit WestRock plc

 

By:   
    
Title:   
    
Date:   
    
Name of Participant:  
   
Tier:    

 

Acknowledged and agreed this _____ day of ______________, 20___

 

 
[Insert Name of Participant] 

 

 

 

 

Exhibit 10.17

 

Smurfit Westrock plc

Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.

Tel: +353 (0)1 202 7000, Fax: +353 (0)1 269 4481

smurfitwestrock.com

 

 

Service Contract

 

between Smurfit Kappa Services Limited and Ken Bowles

 

THIS AGREEMENT, is made on 5 July 2024

 

BETWEEN

 

(1)SMURFIT KAPPA SERVICES LIMITED of C/O Smurfit WestRock plc, Beech Hill, Clonskeagh Dublin 4, Clonskeagh, Dublin (the “Company”)

 

AND

 

(2)KEN BOWLES of [ADDRESS] (the “Executive”)

 

WITNESSETH as follows:

 

1Interpretation

 

1.1Definitions

 

In this Agreement unless the context otherwise requires or unless otherwise specified:

 

“Agreement” means this service agreement and any subsequent amendments thereto;

 

“Associated Undertaking” means any undertaking which from time to time is a subsidiary of the Company or is a holding company of the Company or a subsidiary of any such holding company (“holding company” and “subsidiary” having the meanings set out in section 7 and 8 of the Irish Companies Act 2014);

 

“Board” means the board of directors of the Company from time to time and includes any person or committee duly authorised by the board of directors to act on its behalf for the purposes of this Agreement;

 

“CEO” means the President and Group Chief Executive Officer;

 

“Commencement Date” means 5 July 2024;

 

“Confidential Information” means all and any information, whether or not recorded, of any Group Company which the Executive (or, where the context so requires, another person) has obtained by virtue of his employment or engagement and which the relevant Group Company regards as confidential or in respect of which the relevant Group Company is bound by an obligation of confidence to a third party, including:

 

Smurfit Westrock public limited company. Registered in Ireland No.607515. Registered office: Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.

Directors: Irial Finan Chair, Anthony Smurfit President & Group Chief Executive Officer, Ken Bowles Executive Vice President & Group Chief Financial Officer, Kaisa Hietala Senior Independent Director (Finland), Colleen F Arnold (USA), Tim J Bernlohr (USA), Terrell K Crews (USA), Carol Fairweather (UK), Suzan F Harrison (USA), Mary Lynn Ferguson-McHugh (USA), Lourdes Melgar (Mexico), Jørgen Buhl Rasmussen (Denmark), Dmitri L Stockton (USA),Alan D Wilson (USA).

Secretary: Gillian Carson-Callan.

 

 

 

 

 

(a)all and any information relating to business methods, corporate plans, future business strategy, management systems, finances, and maturing new business opportunities;

 

(b)all and any information relating to research or development projects or both;

 

(c)all and any information concerning the curriculum vitae, remuneration details, work-related experience, attributes and other personal information concerning those employed or engaged by any Group Company;

 

(d)all and any information relating to marketing or sales of any past present or future product or service of any Group Company including sales targets and statistics, market share and pricing statistics, marketing surveys and strategies, marketing research reports, sales techniques, price lists, mark-ups, discounts, rebates, tenders, advertising and promotional material, credit and payment policies and procedures, and lists and details of customers, prospective customers, suppliers and prospective suppliers including their identities, business requirements and contractual negotiations and arrangements with any Group Company;

 

(e)all and any trade secrets, secret formulae, processes, inventions, design, know-how, technical specification and other technical information in relation to the creation, production or supply of any past, present or future product or service of any Group Company, including all and any information relating to the working of any product, process, invention, improvement or development carried on or used by any Group Company or any associate of any Group Company and information concerning the intellectual property portfolio and strategy of any Group Company or of any associate of any Group Company;

 

but excluding any information which:

 

(i)is part of the Executive’s own stock in trade;

 

(ii)is readily ascertainable to persons not connected with the Group without significant expenditure of labour, skill or money; or

 

(iii)which becomes available to the public generally other than by reason of a breach by the Executive of his obligations under this Agreement;

 

“Employment” means the Executive’s employment under this Agreement or, where the context permits or requires, the duration of the Executive’s employment under this Agreement;

 

“Garden Leave” means any period during which the Company exercises its rights under Clause 16;

 

“Group” means the Company, the Parent and all other Associated Undertakings and all references to ’Group Company’ shall be construed accordingly;

 

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“Intellectual Property Rights” means all intellectual property rights in any part of the world and includes patents, utility models, rights in inventions, registered and unregistered trade and service marks, rights in business and trade names and get-up, rights in domain names, registered designs, unregistered rights in designs, semiconductor topography rights, copyrights and related rights (including software copyright), rights in performances, database rights, rights in know-how and all other intellectual property rights (whether or not registered and including registrations and applications for registration) and all similar rights or forms of protection which may exist anywhere in the world;

 

“Parent” means Smurfit WestRock plc a public limited company, incorporated under the laws of Ireland with company registration number 607515 , having its registered address at Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland;

 

“Parent Board” means the board of directors of the Parent from time to time and includes any person or committee duly authorised by the board of directors to act on its behalf for the purposes of this Agreement;

 

“Person” means any individual person, firm, company, partnership, unincorporated association, joint venture or other legal entity; and

 

“Termination Date” means the date on which the Employment terminates irrespective of the cause or manner.

 

2Appointment

 

2.1Basis of Employment

 

2.1.1The Company shall employ the Executive and the Executive shall serve the Company and the Parent as Executive Vice President and Group Chief Financial Officer of the Group or in any other executive capacity of similar status as the Company and / or the Parent may reasonably require.

 

2.1.2The Employment is deemed to have begun on the Commencement Date. For the purposes of continuity of service, the Executive’s employment with the Company began on 20 June 1994.

 

3Duties

 

The Executive shall comply with his statutory fiduciary and common law duties to the Company, the Parent and any other Associated Undertaking of which he becomes a director during the continuance of the Employment and, in particular, shall undertake and perform such duties and exercise such powers, authorities and directions in relation to his position as Executive Vice President and Group Chief Financial Officer of the Group and its business as the CEO or the Parent Board (or such other person(s) authorised by the Parent Board) may from time to time at their sole discretion assign or delegate to or vest in him.

 

4Exclusivity of Service

 

4.1During the course of the Employment, the Executive must devote time, attention and skills exclusively to the business of the Group and he must use his best endeavours to promote the interests, business and welfare of the Group.

 

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4.2In order to protect the Company and the Group’s Confidential Information, to avoid any potential conflicts of interest, the Executive shall not during the course of the Employment (except as a representative of any Group Company) without the prior written consent of the Company or Parent Board and subject to clause 4.3, undertake nor, directly or indirectly be engaged, concerned or interested in, nor make preparations to be engaged, concerned or interested in, any other Person or become an employee, officer, servant or agent of or consultant to any other Person.

 

4.3Nothing in this clause shall preclude the Executive (if the Parent Board shall at its absolute discretion so agree in writing) from serving as a director of up to one company (which is not a member of the Group) provided always that:

 

(a)the business or activity of such company is not in conflict and does not compete and is not likely to compete with the business of the Company or any Associated Undertaking; and

 

(b)the Executive’s interest in and responsibilities towards such company do not interfere with the proper performance by the Executive of his duties under this Agreement.

 

5Directorships

 

5.1The Executive’s office as a director of the Parent is subject to the Articles of Association of the Parent (as amended from time to time). If the provisions of this Agreement conflict with the provisions of such Articles of Association, the Articles of Association will prevail.

 

5.2The Executive must resign from any office held in any Group Company if he is asked to do so by the Company or the Parent Board without claim for compensation, subject to the Articles of Association of the relevant Group Company.

 

5.3The Executive shall receive no compensation for fulfilling the role of director of any Group Company or for membership of any committee formed by the board of any Group Company.

 

6Place and Hours of Work

 

6.1The Executive’s principal place of work shall be at Smurfit WestRock plc, Beech Hill, Clonskeagh, Dublin 4, D04 N2R2 Ireland or at such other place of business of the Company or any member of the Group as the Company or Parent Board shall reasonably require.

 

6.2The Executive shall be required and hereby agrees to travel to such places (whether inside or outside Ireland) and in such manner and on such occasions as the Company or Parent Board may from time to time reasonably require in pursuance of his duties hereunder.

 

6.3The agreed hours of work of the Executive shall be normal business hours and such other hours as may be required for the proper performance of his duties under this Agreement. The Executive hereby acknowledges that as he is responsible for determining the duration of his own working time, Part II of the Organisation of Working Time Act, 1997 shall not apply to the Employment. The Executive shall not be entitled to receive any additional remuneration for work outside normal business hours.

 

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7Salary, Bonus and LTIP

 

7.1Base Salary

 

During the Employment, the Executive shall be paid a salary at the rate of EUR 878,458 gross per annum. Such salary (and any revised salary pursuant to clause 7.2) shall accrue from day to day but shall be paid by equal monthly instalments in arrears on the 19th day of each month into the Executive’s nominated bank account, subject to income tax (PAYE), pay related social insurance contributions (PRSI), universal social charge (USC) and such other deductions which the Company is obliged by law or requested by the Executive or entitled under this Agreement to make. The Executive’s PRSI social insurance contributions will be remitted to the Irish Revenue Commissioners. The Company reserves the right to alter the method of payment of the Executive’s salary, as may be reasonably necessary in the particular circumstances.

 

7.2Annual Review

 

The Executive’s salary provided for in clause 7.1 shall be subject to annual review by the compensation committee of the Parent Board. As a result of any such annual review, the compensation committee of the Parent Board shall not be under any obligation to make any increase in salary.

 

7.3Deductions

 

The Company shall, subject to the provision of reasonable notice to the Executive, and to the extent permitted by law, be entitled to deduct from the Executive’s salary all sums or any other sum due to the Executive from time to time owed by the Executive to any Group Company and by his execution hereof, the Executive consents to the deduction of such sums.

 

7.4Bonus

 

In addition to his salary, from the commencement of the Parent’s Fiscal Year 2025, the Executive shall be eligible to participate in the Annual Incentive Plan (the “Scheme”), details of which are available on application to the compensation committee of the Parent Board. The Executive’s participation in the Scheme is subject to the terms and conditions of the Scheme as may be amended from time to time by the compensation committee of the Parent Board.

 

7.5LTIP

 

The Executive shall also be eligible to participate in the Parent’s Annual Long-Term Incentive Programme (the “LTIP”), details of which are available on application to the compensation committee of the Parent Board. The Executive’s participation in the LTIP is subject to the terms and conditions of the LTIP as may be amended from time to time by the compensation committee of the Parent Board. The Executive acknowledges that the terms and conditions of the Employment as set out in this Agreement shall not be affected in any way by any participation by him in the LTIP which the Executive agrees and affirms shall not form part of such terms and conditions of employment (either expressly or impliedly) including, without limitation, as part of his remuneration under this Agreement.

 

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8Expenses

 

8.1Reimbursement

 

The Company shall reimburse to the Executive all reasonable travelling, hotel, entertainment and other out of pocket expenses properly and wholly incurred by him in the performance of his duties, subject to the Executive’s adherence to the Group’s Expenses Policy, which may be amended from time to time. Failure to submit expenses in accordance with the Group’s Expenses Policy may result in non-payment.

 

8.2Credit or Charge Card

 

Where the Company issues a Company sponsored credit or charge card to the Executive, he shall use such card only for expenses reimbursable under clause 8.1 above.

 

8.3Club Membership

 

On production of valid invoices, the Company shall reimburse the Executive membership fees which relate solely to his membership of two clubs, which clubs are to be selected by the Executive but subject to approval by the Parent Board.

 

9Pension

 

9.1The Executive shall be entitled to remain a member of the Company pension scheme, subject to the rules of the scheme as may be amended from time to time. The Company is not obliged to make any employer contributions to the Company pension scheme for the benefit of the Executive.

 

9.2Subject to the deduction of income tax (PAYE), pay related social insurance contributions (PRSI), universal social charge (USC) and such other deductions which the Company is obliged by law to make, the Executive shall be entitled to a retirement cash allowance, equivalent to 10% of his annual base salary, to be paid monthly in arrears on the 19th day of each month.

 

9.3Notwithstanding 9.2 above, an Automatic Enrolment Retirement Savings System (the “AE System”) is expected to be introduced in Ireland in 2025.  When the AE System commences, it is anticipated that the Company will be required to pay contributions in respect of the Executive to the AE System or the Company’s pension scheme.  For the avoidance of doubt:

 

9.3.1The Executive’s pension cash allowance as detailed at 9.2 will be adjusted to reflect any contributions made by the Company to the AE System or the Company’s pension scheme in respect of the Executive; and

 

9.3.2in the event that the Executive is auto-enrolled into the AE System the Company reserves the right to cease or vary the payment of any contributions made for the benefit of the Executive to the Company’s pension scheme (if applicable).

 

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10Insured Benefits

 

Subject to (and conditional upon) clauses 10.4 to 10.7, the Company shall provide the following benefits to the Executive:

 

10.1Permanent Health Insurance (PHI)

 

10.1.1The Executive shall be entitled to participate in the Company’s PHI scheme at the Company’s expense. Full details of the PHI scheme are available from the Company’s HR Department.

 

10.1.2The Company shall only be obliged to make payments to the Executive under the PHI scheme if it has received payment from the insurance provider for that purpose.

 

10.2Private Medical Insurance

 

10.2.1The Executive and the Executive’s spouse and dependent children shall be entitled to participate in the Company’s private medical insurance scheme. Full details of the Company’s private medical scheme are available from the HR Department.

 

10.3Life Assurance

 

10.3.1The Executive shall be entitled to participate in the Company’s life assurance scheme, at the Company’s expense, to pay the Executive’s dependents a sum equal to 4 times the Executive’s salary if the Executive dies during his employment. Full details of the Company’s life assurance scheme are available from the Company’s HR Department.

 

10.4The Executive’s entitlement to the insurance benefits in this clause shall cease on the Termination Date and the Executive shall not be entitled to claim any compensation for loss of such benefits as part of any claim for damages or compensation.

 

10.5All insured benefits in this clause 10 are subject to:

 

10.5.1the policy terms, conditions and rules of the relevant schemes, as amended from time to time; and

 

10.5.2the Executive and, if appropriate, the Executive’s spouse, civil partner, or long term partner and / or dependent children satisfying the normal underwriting requirements of the relevant insurance provider.

 

10.6The Executive’s entitlement to the insurance benefits in this clause shall cease on the Termination Date and the Executive shall not be entitled to claim any compensation for loss of such benefits as part of any claim for damages or compensation in relation to the termination of his employment, howsoever arising. Nothing in this Agreement shall prevent the Company from terminating the Executive’s employment for any reason whatsoever even where the effect of termination is to prejudice, prevent or terminate an actual or prospective claim under any PHI scheme.

 

10.7In the event that the insurer of any insured benefit does not meet a claim made by the Executive (or on behalf of the Executive) or the Executive’s spouse or dependent children or on the Executive’s behalf, then the Executive will have no claim against the Company in respect of that insured benefit.

 

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11Car

 

11.1During the Employment, and while the Executive holds a valid driving licence, the Company shall provide a car benefit to be agreed with the Executive and subject to the Company’s Car Policy as may be in force from time to time.

 

12Annual Leave

 

12.1Amount of Annual Leave

 

The Executive shall be entitled to 30 days’ annual leave (in addition to statutory public holidays) in each holiday year to be taken in accordance with the Organisation of Working Time Act, 1997.

 

12.2Payment in Lieu of Accrued Leave

 

Annual leave entitlement shall be deemed to accrue on a pro rata basis and on the termination of this Agreement howsoever arising the Executive shall be entitled to pay in lieu of all accrued but unused annual leave entitlement up to and including the Termination Date only and shall be required to repay to the Company pay for annual leave taken in excess of entitlement.

 

12.3Basis of Leave

 

12.3.1The Company’s holiday year commences on 1 January and ends on 31 December. The Executive shall comply with the Company’s annual leave policy as may be in force from time to time.

 

12.3.2In the event that notice of termination of the Employment is served by either party, the Company may require the Executive to take any outstanding holiday during his notice period.

 

13Incapacity

 

13.1Sick Pay Scheme

 

The Executive shall comply with the Company’s sickness and absence policy in force from time to time. The Company operates a sick pay scheme, details of which can be found in the Company’s sickness absence policy. Any payment of sick pay shall be subject to (i) the rules of the scheme as may be amended from time to time, (ii) the Executive’s compliance with this clause 13 and (iii) his adherence to any directions and / or advice issued to him by the medical practitioners nominated by the Company pursuant to clause 13.2.

 

13.2Medical Examinations

 

The Company or the Parent Board may (at its expense) at any time whether or not the Executive is then incapacitated, require the Executive to submit to such medical examinations and tests by medical practitioners nominated by the Company of the Parent Board at the expense of the Company or Parent and the Executive hereby submits to such medical examination and tests and hereby authorises such medical practitioners to disclose to, and discuss with, the Company and the Parent Board and its medical advisers the results of such examinations and tests.

 

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14Severance Plan

 

The Executive shall be eligible to participate in the Parent’s Executive Severance Plan, details of which are available on application to the Chairperson of the Compensation Committee of the Parent Board, subject to the terms and conditions of such plan as may be amended from time to time by the Parent. For the avoidance of doubt, any payment under such plan shall not form part of the Executive’s remuneration for the purposes of the Employment.

 

15Grievance and Disciplinary Matters

 

15.1A copy of the Company’s disciplinary, dismissal and grievance procedures are set out in the Company Handbook (a copy of which has been provided to the Executive). These procedures do not form part of the Executive’s contract of employment.

 

15.2All grievances which the Executive may have in the first instance shall be referred to the Chairperson of the Parent Board, or where the grievance relates to the Chairperson such other person as the Parent Board in its absolute discretion determines. If not resolved, the matter shall be referred to the Parent Board, whose decision shall be final.

 

16Garden Leave

 

16.1Following service of notice to terminate the Employment by either party under clause 17 or if the Executive resigns without giving due notice and the Company does not accept his resignation, the Company may, at its absolute discretion, require that the Executive does not attend the Company premises or have contact with other staff or clients of any Group Company for such period as the Company feels is reasonable.

 

16.2During Garden Leave, the Company, the Parent and / or any other relevant Associated Undertaking shall not be obliged to provide any work for the Executive or to assign to or vest in the Executive any powers, duties or functions and may for all or part of such Garden Leave do any or all of the following:

 

16.2.1announce externally or internally or both that the Executive has given or been given notice of termination of the Employment or any office(s) and been placed on Garden Leave and (where applicable) that a substitute has been appointed;

 

16.2.2exclude the Executive from all or any premises of any Group Company and require the Executive to carry out no duties;

 

16.2.3require the Executive to abstain from engaging in any contact (whether or not initiated by him) which concerns any of the business affairs of any Group Company with any customer, client, supplier, other business connection, employee, director, officer, consultant or agent of the Company or any associate of any Group Company without the prior written consent of the Board;

 

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16.2.4save where absent due to agreed holidays or authorised absence for sickness or injury or other authorised leave, require the Executive to undertake at his home or at such place reasonably nominated by the Company such reasonable duties (which may differ from the Executive’s normal duties) as the Company, the Parent or any other relevant Associated Undertaking may at its discretion assign and to provide any reasonable assistance requested by the relevant Group Company;

 

16.2.5suspend or limit the Executive’s access to any Group Company’s computer, e-mail, telephone, voicemail or other communication systems or databases; and

 

16.2.6exercise its rights under sub clause 16.5.

 

16.3During Garden Leave:

 

16.3.1the Executive shall continue to receive basic salary and contractual benefits (excluding bonuses);

 

16.3.2the Company may require the Executive to take any outstanding holiday entitlement;

 

16.3.3the Executive shall not use social networking websites and / or business networking websites to seek alternative employment without the prior written consent of the Company and shall confirm in writing on termination of employment with the Company that his profiles on business networking websites have been updated;

 

16.3.4the Executive shall provide such assistance as any Group Company may require to effect an orderly handover of his responsibilities to any individual or individuals appointed by any Group Company to take over his role or responsibilities;

 

16.3.5the Executive shall remain readily contactable and available for work. In the event that the Executive is not available for work having been requested by the Company or any other Group Company to do so, the Executive shall, notwithstanding any other provision of this Agreement, forfeit any right to basic salary and contractual benefits; and

 

16.3.6the Company, the Parent and / or relevant other Group Company may appoint another person to carry out his duties in substitution for the Executive.

 

16.4All duties of the Executive to the Group (whether express or implied), including without limitation his duties of fidelity, good faith and exclusive service, shall continue during Garden Leave save as expressly varied by this clause 16.

 

16.5The Executive agrees that the exercise by the Company (whether for itself and / or for and on behalf of another Group Company) of its rights pursuant to this clause 16 shall not entitle the Executive to claim that he has been constructively dismissed.

 

16.6The Executive shall have no eligibility for any bonus (including the bonus referred to in clause 7.4) in respect of any period of Garden Leave and shall have no claim in respect of the effect (if any) which any such Garden Leave may have on his eligibility in respect of any other period.

 

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17Duration and Termination

 

17.1Duration

 

If either party wishes to terminate the Employment, it should give to the other twelve months’ notice in writing. This does not preclude the Company from terminating the Employment without notice in certain circumstances.

 

17.2Payment in Lieu of Notice

 

17.2.1It is acknowledged by the Executive that the Company may, in its absolute discretion and without any obligation to do so, terminate the Employment forthwith at any time and with immediate effect by notifying the Executive that: (a) it is doing so; and (b) that it will make a payment in lieu of notice (“PILON”).

 

17.2.2Subject to the terms and conditions of the Parent’s Executive Severance Plan as referred to in clause 14, if the Company exercises its right to terminate pursuant to this clause, the PILON will consist of basic salary but not any other benefits. For the avoidance of doubt, any PILON will not include any element in relation to:

 

(a)any bonus payments that might otherwise have been due to the Executive during the period for which PILON is made; and

 

(b)any payment in respect of benefits which the Executive would have been entitled to receive during the period for which PILON is made; and

 

(c)any payment in respect of any holiday entitlement that would have accrued during the period for which the PILON is made.

 

For the avoidance of doubt, where the Executive receives a PILON payment under the Parent’s Executive Severance Plan, he shall not be entitled to also receive any payment in relation to notice whether under this clause 17.2.2. or otherwise.

 

17.2.3Subject to the terms and conditions of the Parents’ Executive Severance Plan as referred to in clause 14, the Company may pay any PILON in equal monthly instalments until the end of the period for which PILON is made.

 

17.2.4Subject to the terms and conditions of the Parents’ Executive Severance Plan as referred to in clause 14, the PILON shall be subject to the deduction of income tax, PRSI, USC and such other deductions which the Company is obliged by law or requested by the Executive or entitled under this Agreement to make.

 

17.3Immediate Termination

 

The Employment may be terminated immediately without notice or PILON where the Executive:

 

17.3.1is guilty of gross misconduct which includes (but is not limited to dishonesty) fraud, theft, causing or threatening physical harm and / or damaging Company property or property of any Associated Undertaking; or

 

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17.3.2commits a material or repeated breach or non-observance of any of the provisions of this Agreement or fails to observe the lawful directions of the Board or Parent Board or CEO; or

 

17.3.3acts in a manner which in the reasonable opinion of the Board or Parent Board brings any Group Company into disrepute or otherwise prejudices or is considered likely to prejudice the reputation of any Group Company; or

 

17.3.4is adjudicated bankrupt or commits any act of bankruptcy or makes any arrangement or composition with his creditors; or

 

17.3.5becomes of unsound mind or shall be or become a patient for the purposes of any mental health acts such that he is unable to perform his duties under this Agreement; or

 

17.3.6is convicted of any criminal offence (other than a road traffic offence which does not result in a custodial sentence) which in the reasonable opinion of the Board or Parent Board may affect his position in or the reputation of any Group Company; or

 

17.3.7is absent or unable through illness or injury to discharge in full his duties hereunder for a consecutive period of 90 days or for an aggregate period of 180 days in any period of 12 consecutive months; or

 

17.3.8ceases to be a director of the Company or is prohibited or disqualified by law from holding any office in any Group Company or any other company.

 

17.4Executive’s Obligations on Termination

 

On the Termination Date (for whatever reason and howsoever caused), or at the Company’s request following the Executive having been placed on Garden Leave pursuant to clause 16 the Executive shall promptly:

 

17.4.1resign from all offices held by him in any Group Company and from all other appointments or offices which he holds as nominee or representative of the Company or of any Associated Undertaking and do all such acts and things (if any) as may be necessary to make any such resignations effective; and

 

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17.4.2deliver up to the Company (to whomever the Board or Parent Board specifies), without destruction, deletion or redaction of any data or images, and all original copies or extracts of:

 

(a)correspondence, documents (including list of customers), laptops, computer drives, computer disks, other computer equipment (including leads and cables), tapes, mobile telephones, wireless devices (or similar equipment), credit cards, security passes, keys, car provided by the Company (which is to be returned in good condition allowing for fair wear and tear) and other tangible items, which are in his possession or under his control and which belong to or are leased or hired by any Group Company; and

 

(b)correspondence and documents (including lists of customers) in his possession or under his control which contain or refer to any Confidential Information; and

 

(c)minutes of meetings and other papers of the Board and Parent Board and of any board of directors of any Associated Undertaking which are in his possession or under his control,

 

17.4.3having forwarded a copy to the Company, irretrievably delete any and all Confidential Information from any laptops, computer drives, computer disks, tapes mobile telephones, wireless devices (or similar equipment) or other re-usable material in the Executive’s possession or under his control (but which do not belong to any Group Company).

 

The Executive shall produce such evidence of his compliance with sub-clauses 17.4.2 and 17.4.3 as the Company may reasonably require.

 

17.5The termination of this Agreement shall not affect such of the provisions of this Agreement as are expressed to operate or have effect thereafter and shall be without prejudice to any right of action already accrued to either party in respect of any breach of this Agreement by the other party.

 

17.6The Company shall upon termination pay to the Executive all accrued and unpaid remuneration, fees and expenses due under the terms of this Agreement, less any amounts owing by the Executive to the any Group Company.

 

18Confidentiality

 

18.1Use of Confidential Information

 

18.1.1The Executive acknowledges that, during the Employment, he will have access to Confidential Information and has therefore agreed to accept the restrictions in this clause. The Executive shall not during the continuance of this Agreement or at any time thereafter except as authorised by the Board or Parent Board in the proper performance of his duties hereunder disclose or cause to be disclosed to any person or use for his own purposes or for any purposes other than those of the Group any Confidential Information which he may have received or obtained during his employment with the Company, work with the Parent or during the continuance of this Agreement or information in respect of which any Group Company is bound by an obligation of confidence to a third party and he shall use his best endeavours to prevent the publication or disclosure of any such information.

 

18.1.2All notes, memoranda, documents, records and writing made, received or obtained by the Executive on any matters relating to the organisation, business, finance, customers, suppliers, dealings, transactions or affairs of any Group Company shall be treated as confidential and shall be and remain the property of the relevant Group Company and shall be delivered by the Executive to the relevant Group Company (as the case may be) forthwith upon request.

 

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18.1.3The restrictions contained in this clause shall not apply to:

 

(a)any disclosure authorised by the Board or Parent Board or required in the ordinary and proper course of the Employment or as required by the order of a court of competent jurisdiction or an appropriate regulatory authority; or

 

(b)any information which the Executive can demonstrate was known to the Executive prior to the commencement of the Employment or is in the public domain otherwise than as a result of a breach of this clause.

 

19Restrictive Covenants

 

19.1For the purposes of this clause 19:

 

“Key Employee” means the senior leadership team of the Group from time to time;

 

“Relevant Business” means the business or businesses from time to time carried on by the Company, the Parent and / or any other Associated Undertaking, limited to the activities with which the Executive was materially concerned or involved in the course of his employment during the Relevant Period, or in respect of which the Executive possessed a material amount of Confidential Information as at the Relevant Date;

 

“Restricted Area” means Ireland, the US, the UK, the Netherlands and any other country in which the Company, the Parent and / or any other Associated Undertaking carries on a material amount of Relevant Business or intends to carry on Relevant Business, where such intention is reasonably within the knowledge of the Executive, as at the Relevant Date;

 

“Relevant Date” means the earlier of (a) the Termination Date (howsoever arising); or (b) the date on which the Executive commences Garden Leave pursuant to this Agreement;

 

“Relevant Period” means the twelve months prior to, and including, the Relevant Date;

 

“Restricted Person” means any Person with whom the Executive had material or regular dealings at any time during the Relevant Period, or in relation to whose dealings with the Company, the Parent and / or any other Associated Undertaking the Executive possessed a material amount of Confidential Information as at the Relevant Date;

 

“Restricted Products or Services” shall mean products or services of the same type as or similar to or competitive with any products or services supplied by the Company, the Parent and or any other Associated Undertaking at the Relevant Date, in the sale or supply of which the Executive shall have been involved to any material extent at any time during the Relevant Period.

 

19.2The Executive acknowledges:

 

§that the Group is in a unique and highly specialised business, which is international in scope with a limited number of competitors;

 

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§that the Group possess a valuable body of Confidential Information and that the Executive’s knowledge of Confidential Information directly benefits him by enabling him to perform his duties;

 

§that the protection of Confidential Information, customer connections, supplier connections, goodwill, and the stability of the workforce of the Company, the Parent and / or any other Associated Undertakings are business interests requiring protection; and

 

§that the disclosure of any Confidential Information to any actual or potential competitor of the Company, the Parent and / or any other Associated Undertaking would place the Company and / or its relevant Associated Undertaking(s) at a serious competitive disadvantage and would cause immeasurable (financial and other) damage to the Relevant Business.

 

19.3Non-Compete Restriction

 

The Executive agrees with the Company that to protect the Company’s legitimate business interests (and / or those of the Parent and / or any other relevant Associated Undertaking) including those set out at clause 19.2, during the Employment and for a period of twelve months after the Relevant Date, the Executive shall not within the Restricted Area, without the prior written consent of the Company, directly or indirectly in any capacity (limited to a role that is of the same, similar or greater seniority, status and remuneration as your role of executive director and Executive Vice President and Group Chief Financial Officer, as determined on the basis of the prevailing industry norm for a role commensurate with any such role) either on his own behalf or in conjunction with or on behalf of any other Person, be engaged, concerned or interested in the Relevant Business or in any business wholly or partly in competition with the Relevant Business, save that he may hold for investment:

 

19.3.1up to 3% of any class of securities quoted or dealt in on a recognised investment exchange; and

 

19.3.2up to 10% of any class of securities not so quoted or dealt.

 

19.4Non-Solicitation / Non-Deal Restrictions

 

The Executive agrees with the Company that to protect the Company’s legitimate business interests (and / or those of the Parent and / or any other relevant Associated Undertaking) including those set out at clause 19.2, during the Employment and for a period of twelve months after the Relevant Date, the Executive shall not within the Restricted Area, without the prior written consent of the Company, directly or indirectly in any capacity either on his own behalf or in conjunction with or on behalf of any other Person:

 

19.4.1accept orders for or supply or cause orders to be accepted for or cause to be supplied Restricted Products or Services to any Restricted Person who:

 

(a)was provided with products or services by the Company, the Parent or any other Associated Undertaking at any time during the Relevant Period; or

 

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(b)who was negotiating with the Company, the Parent or any other Associated Undertaking in relation to orders for or the supply of products or services from the Company, the Parent or any other Associated Undertaking at any time during the Relevant Period.

 

19.4.2solicit, canvass or approach or endeavour to solicit, canvass or approach or cause to be solicited, canvassed or approached any Restricted Person who:

 

(a)was provided with products or services by the Company, the Parent and / or any other Associated Undertaking at any time during the Relevant Period; or

 

(b)was negotiating with the Company, the Parent and / or any Associated Undertaking in relation to orders for or the supply of products or services from the Company, the Parent and / or any other Associated Undertaking at any time during the Relevant Period,

 

for the purpose of offering to that Person Restricted Products or Services.

 

19.4.3interfere or seek to interfere or take steps as may interfere with the supplies (or the prospective supplies) to the Company, the Parent and / or any other Associated Undertaking (or the terms relating to such supplies) from any Restricted Person who:

 

(a)supplied components, materials, products or services to the Company, the Parent and / or any Associated Undertaking at any time during the Relevant Period;

 

(b)was negotiating with the Company, the Parent and / or any Associated Undertaking in relation to the supply of components, materials, products or services to the Company, the Parent, and / or any Associated Undertaking at any time during the Relevant Period.

 

19.4.4solicit or entice away or endeavour to solicit or entice away or cause to be solicited or enticed away from the Company, the Parent and / or any other Associated Undertaking any Person with whom the Executive worked with, or had managerial responsibility for, at any time during Relevant Period (or in relation to whom, as at the Relevant Date, the Executive possessed a material amount of Confidential Information) and:

 

(a)who was, at the Relevant Date, a Key Employee; and

 

(b)whose departure from the Company, the Parent and / or any other Associated Undertaking would have a material adverse effect on the business of such undertaking.

 

19.5The Executive agrees that he will not, after the Termination Date, whether directly or indirectly, use in connection with any business, any name that includes the name of the Company, the Parent and / or any other Associated Undertaking, or any colourable imitation of such names, and that he shall not represent himself or permit himself to be held out as being in any way connected with or interested in the business of the Company, the Parent and / or any other Associated Undertaking and that he shall take such steps as are necessary to comply with this obligation (including, but not limited to, by amending his social media profile) provided that such steps are not inconsistent with the Executive’s on-going obligations under this Agreement.

 

19.6The Executive agrees that if, during the continuance in force of the restrictions set out in this clause 19, he receives an offer of employment from any Person, he will immediately provide that Person with a complete and accurate copy of the restrictions set out herein.

 

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19.7The Executive acknowledges and confirms that the restrictions set out in this clause are reasonable and go no further than is reasonably necessary to protect the legitimate business interests of the Company, the Parent and / or any other Associated Undertakings (including, but not limited to, those interests acknowledged by the Executive in clause 19.2 of this Agreement).

 

19.8Nothing contained in this clause 19 shall act to prevent the Executive from using generic skills learnt while employed by the Company, the Parent and / or any other Associated Undertaking in any business or activity which is not in competition with the Company.

 

19.9Each of the restrictions set out in this clause 19 is separate and severable and in the event of any such restriction (including the defined expressions) being determined as being unenforceable in whole or in part for any reason such unenforceability shall not affect the enforceability of the remaining restrictions or, in the case of part of a restriction being unenforceable, the remainder of that restriction.

 

19.10The Executive acknowledges and confirms that he shall at the request (and cost) of the Company enter into a further agreement with the Parent and / or the Associated Undertaking whereby he shall accept restrictions corresponding to the restrictions in this Agreement.

 

20Use of Intellectual Property

 

20.1Applicability

 

“Works” means all Intellectual Property Rights (including any extensions and renewals thereof and including the right to sue for damages and other remedies in respect of any past infringements) which arise as a result of any creation, invention or discovery made by the Executive whether alone or with any other person at any time during either (a) the course of his employment with the Company; or (b) outside the course of his employment if the Intellectual Property Rights relate directly or indirectly to the business of the Group or any Associated Undertaking or which may, in the sole opinion of the Company, be capable of being used or adapted for by any Group Company.

 

20.2Property of the Company

 

20.2.1The Executive hereby agrees and acknowledges that all Works shall automatically belong to the Company to the fullest extent permitted by law.

 

20.2.2To the extent that any Intellectual Property Rights in any Works do not automatically vest in the Company (either at law or by virtue of this Agreement) the Executive hereby assigns to the Company (or, at the direction of the Company, to an Associated Undertaking) as a present and future assignment, all Intellectual Property Rights throughout the world for the maximum duration of such rights.

 

20.2.3To the extent that any Intellectual Property Rights are incapable of being assigned to the Company (or an Associated Undertaking) under applicable law, then the Executive hereby grants to the Company (or an Associated Undertaking) an exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide licence to use such Intellectual Property Rights to the fullest extent permitted by law (including the right to sub-license and to assign all of these rights).

 

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20.3Undertakings by Executive

 

The Executive hereby:

 

20.3.1Undertakes to disclose to the Company in writing full details of all Works upon the creation, invention or discovery of the same, and promptly whenever requested by the Company and in any event upon the termination of the Employment deliver up to the Company all correspondence and other documents, papers and records and all copies thereof in his possession, custody or power relating to any Intellectual Property Rights;

 

20.3.2irrevocably and unconditionally waives all moral rights granted by Chapter 7 of the Copyright and Related Rights Act 2000 (and all similar rights in other jurisdictions) that vest in the Executive at any time in connection with the Works and the Executive agrees not to initiate, support or maintain any action or claim to the effect that any treatment, exploitation or use of such work infringes such right;

 

20.3.3undertakes, at the expense of the Company, to execute all such documents, make such applications, give such assistance and do such acts and things as may in the opinion of the Board be necessary or desirable in order to give effect to this clause; and

 

20.3.4irrevocably appoints the Company or its nominee as the attorney of the Executive to execute all documents as the Company may consider necessary to give effect to this clause.

 

21Data Protection

 

21.1The Company holds and processes the Executive’s personal data for legal, personnel, administrative and management purposes in accordance with applicable laws and as outlined in all applicable Company Data Protection Policies and the Employee Privacy Statement, as may be in force from time to time.

 

21.2The Executive agrees to comply with the Applicable Data Protection Laws and agrees to review and abide by the terms of the Company’s and Group’s policies on data protection, a copy of which is set out in the Company Handbook.

 

21.3The Executive acknowledges that the Company may monitor and/or record his use of office equipment, including but not limited to email and Internet, and mobile telephones, in order to ascertain compliance with the Company’s and Group’s policies, detect unauthorised use or misconduct, and otherwise ensure the effective operation of the systems.

 

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22Notices

 

22.1Any notice or other communication whether required or permitted to be given in accordance with this clause 22 shall be given in writing and shall be deemed to have been duly given if delivered by hand, sent by email, if sent by registered or recorded delivery post (if within Ireland) or if sent by registered express airmail post (if outside Ireland) correctly addressed to the relevant party’s address as specified in this contract or at such other address as such party may designate from time to time in writing in accordance with this 22 and marked for the attention of the company’s secretary in the case of notices addressed to the company

 

22.2In the absence of evidence of earlier receipt, any such notice shall take effect from the time that it is deemed to have been duly given, namely:

 

22.2.1if delivered by hand, at the time of delivery;

 

22.2.2if sent by email, at the time the email is sent;

 

22.2.3if sent by post within Ireland, two days after posting (exclusive of Saturdays, Sundays and public holidays);

 

22.2.4if sent by post to or from outside Ireland, five days after posting (exclusive of Saturdays, Sundays and public holidays).

 

22.3The Executive undertakes to provide the Company, upon request, with an address in Ireland and / or email address for service of notices pursuant to this 22.

 

23Miscellaneous

 

23.1Variation

 

No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties hereto.

 

23.2Counterparts

 

This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts each of which when executed and delivered shall constitute an original and all such counterparts together constituting one and the same instrument.

 

23.3Terms of Employment (Information) Act 1994

 

This Agreement shall form the statement of the Executive’s terms and conditions of employment in compliance with the provisions of the Terms of Employment (Information) Act 1994 (as amended).

 

23.4Whole Agreement

 

Each of the Executive and the Company (on behalf of itself and its Associated Undertakings) confirms that this Agreement contains the whole agreement between the parties hereto relating to the matters provided for in this Agreement and supersedes all previous agreements (if any) between such parties in respect of such matters and each of the parties to this Agreement acknowledges that in agreeing to enter into this Agreement it has not relied on any representations or warranties except for those contained in this Agreement.

 

24Governing Law

 

This Agreement shall be governed by and construed in accordance with the laws of Ireland and the courts of Ireland shall have exclusive jurisdiction to deal with all disputes arising from or touching upon this Agreement.

 

This Agreement has been entered into on the date stated at the beginning of it.

 

[Remainder of this page left intentionally blank – signature page follows]

 

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Signed by    
KEN BOWLES    
in the presence of:    
     
/s/ Ciara O'Riordan   /s/ Ken Bowles
Witness’ Signature   Ken Bowles
     
Ciara O'Riordan    
Witness’ Name    
     
Beech Hill, Clonskeagh, Dublin 4    
Witness’ Address    
     
Accountant    
Witness’ Occupation    

 

Signed by:  /s/ Gillian Carson-Callan   Gillian Carson-Callan
duly authorised for and on behalf of   Authorised signatory
SMURFIT KAPPA SERVICES LIMITED    

 

[Service Contract – Ken Bowles – Signature Page]

 

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Exhibit 10.18

 

Smurfit Westrock plc
Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.
Tel: +353 (0)1 202 7000, Fax: +353 (0)1 269 4481
smurfitwestrock.com		  

 

Service Contract

 

between Smurfit Kappa Services Limited and Anthony Smurfit

 

THIS AGREEMENT, is made on 5 July 2024

 

BETWEEN

 

(1)SMURFIT KAPPA SERVICES LIMITED of C/O Smurfit WestRock plc, Beech Hill, Clonskeagh Dublin 4, Clonskeagh, Dublin (the “Company”)

 

AND

 

(2)ANTHONY P.J. SMURFIT of [ADDRESS] (the “Executive”)

 

WITNESSETH as follows:

 

1Interpretation

 

1.1Definitions

 

In this Agreement unless the context otherwise requires or unless otherwise specified:

 

“Agreement” means this service agreement and any subsequent amendments thereto;

 

“Associated Undertaking” means any undertaking which from time to time is a subsidiary of the Company or is a holding company of the Company or a subsidiary of any such holding company (“holding company” and “subsidiary” having the meanings set out in section 7 and 8 of the Irish Companies Act 2014);

 

“Board” means the board of directors of the Company from time to time and includes any person or committee duly authorised by the board of directors to act on its behalf for the purposes of this Agreement;

 

“Commencement Date” means 5 July 2024;

 

“Confidential Information” means all and any information, whether or not recorded, of any Group Company which the Executive (or, where the context so requires, another person) has obtained by virtue of his employment or engagement and which the relevant Group Company regards as confidential or in respect of which the relevant Group Company is bound by an obligation of confidence to a third party, including:

 

Smurfit Westrock public limited company. Registered in Ireland No.607515. Registered office: Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.

Directors: Irial Finan Chair, Anthony Smurfit President & Group Chief Executive Officer, Ken Bowles Executive Vice President & Group Chief Financial Officer, Kaisa Hietala Senior Independent Director (Finland), Colleen F Arnold (USA), Tim J Bernlohr (USA), Terrell K Crews (USA), Carol Fairweather (UK), Suzan F Harrison (USA), Mary Lynn Ferguson-McHugh (USA), Lourdes Melgar (Mexico), Jørgen Buhl Rasmussen (Denmark), Dmitri L Stockton (USA), Alan D Wilson (USA).

Secretary: Gillian Carson-Callan.

 

 

 

 

 

 

(a)all and any information relating to business methods, corporate plans, future business strategy, management systems, finances, and maturing new business opportunities;

 

(b)all and any information relating to research or development projects or both;

 

 

 

 

 

 

(c)all and any information concerning the curriculum vitae, remuneration details, work-related experience, attributes and other personal information concerning those employed or engaged by any Group Company;

 

(d)all and any information relating to marketing or sales of any past present or future product or service of any Group Company including sales targets and statistics, market share and pricing statistics, marketing surveys and strategies, marketing research reports, sales techniques, price lists, mark-ups, discounts, rebates, tenders, advertising and promotional material, credit and payment policies and procedures, and lists and details of customers, prospective customers, suppliers and prospective suppliers including their identities, business requirements and contractual negotiations and arrangements with any Group Company;

 

(e)all and any trade secrets, secret formulae, processes, inventions, design, know-how, technical specification and other technical information in relation to the creation, production or supply of any past, present or future product or service of any Group Company, including all and any information relating to the working of any product, process, invention, improvement or development carried on or used by any Group Company or any associate of any Group Company and information concerning the intellectual property portfolio and strategy of any Group Company or of any associate of any Group Company;

 

but excluding any information which:

 

(i)is part of the Executive’s own stock in trade;
   
(ii)is readily ascertainable to persons not connected with the Group without significant expenditure of labour, skill or money; or
   
(iii)which becomes available to the public generally other than by reason of a breach by the Executive of his obligations under this Agreement;

 

“Employment” means the Executive’s employment under this Agreement or, where the context permits or requires, the duration of the Executive’s employment under this Agreement;

 

“Garden Leave” means any period during which the Company exercises its rights under Clause 16;

 

“Group” means the Company, the Parent and all other Associated Undertakings and all references to ’Group Company’ shall be construed accordingly;

 

“Intellectual Property Rights” means all intellectual property rights in any part of the world and includes patents, utility models, rights in inventions, registered and unregistered trade and service marks, rights in business and trade names and get-up, rights in domain names, registered designs, unregistered rights in designs, semiconductor topography rights, copyrights and related rights (including software copyright), rights in performances, database rights, rights in know-how and all other intellectual property rights (whether or not registered and including registrations and applications for registration) and all similar rights or forms of protection which may exist anywhere in the world;

 

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“Parent” means Smurfit WestRock plc a public limited company, incorporated under the laws of Ireland with company registration number 607515, having its registered address at Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland;

 

“Parent Board” means the board of directors of the Parent from time to time and includes any person or committee duly authorised by the board of directors to act on its behalf;

 

“Person” means any individual person, firm, company, partnership, unincorporated association, joint venture or other legal entity; and

 

“Termination Date” means the date on which the Employment terminates irrespective of the cause or manner.

 

2Appointment

 

2.1Basis of Employment

 

2.1.1The Company shall employ the Executive and the Executive shall serve the Company and the Parent as President and Group Chief Executive Officer or in any other executive capacity of similar status as the Company and / or the Parent may reasonably require.

 

2.1.2The Employment is deemed to have begun on the Commencement Date. For the purposes of continuity of service, the Executive’s employment with the Company began on 1 February 1985.

 

3Duties

 

The Executive shall comply with his statutory fiduciary and common law duties to the Company, the Parent and any other Associated Undertaking of which he becomes a director during the continuance of the Employment and, in particular, shall undertake and perform such duties and exercise such powers, authorities and directions in relation to his position as President and Group Chief Executive Officer and its business as the Parent Board (or such other person(s) authorised by the Parent Board) may from time to time at their sole discretion assign or delegate to or vest in him.

 

4Exclusivity of Service

 

4.1During the course of the Employment, the Executive must devote time, attention and skills exclusively to the business of the Group and he must use his best endeavours to promote the interests, business and welfare of the Group.

 

4.2In order to protect the Group’s Confidential Information, to avoid any potential conflicts of interest, the Executive shall not during the course of the Employment (except as a representative of any Group company) without the prior written consent of the Company or Parent Board and subject to clause 4.3, undertake nor, directly or indirectly be engaged, concerned or interested in, nor make preparations to be engaged, concerned or interested in, any other Person or become an employee, officer, servant or agent of or consultant to any other Person.

 

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4.3Nothing in this clause shall preclude the Executive (if the Parent Board shall at its absolute discretion so agree in writing) from serving as a director of up to one company (which is not a member of the Group) provided always that:

 

(a)the business or activity of such company is not in conflict and does not compete and is not likely to compete with the business of the Company or any Associated Undertaking; and

 

(b)the Executive’s interest in and responsibilities towards such company do not interfere with the proper performance by the Executive of his duties under this Agreement.

 

5Directorships

 

5.1The Executive’s office as a director of the Parent is subject to the Articles of Association of the Parent (as amended from time to time). If the provisions of this Agreement conflict with the provisions of such Articles of Association, the Articles of Association will prevail.

 

5.2The Executive must resign from any office held in any Group Company if he is asked to do so by the Company or the Parent Board without claim for compensation, subject to the Articles of Association of the relevant Group Company.

 

5.3The Executive shall receive no compensation for fulfilling the role of director of any Group Company or for membership of any committee formed by the board of any Group Company.

 

6Place and Hours of Work

 

6.1The Executive shall be required to perform his duties at such place of business of the Company or any member of the Group as the Company or Parent Board shall reasonably require.

 

6.2The Executive shall be required and hereby agrees to travel to such places (whether inside or outside Ireland) and in such manner and on such occasions as the Company or Parent Board may from time to time reasonably require in pursuance of his duties hereunder.

 

6.3The agreed hours of work of the Executive shall be normal business hours and such other hours as may be required for the proper performance of his duties under this Agreement. The Executive hereby acknowledges that as he is responsible for determining the duration of his own working time, Part II of the Organisation of Working Time Act, 1997 shall not apply to the Employment. The Executive shall not be entitled to receive any additional remuneration for work outside normal business hours.

 

7Salary, Bonus and LTIP

 

7.1Base Salary

 

During the Employment, the Executive shall be paid a salary at the rate of EUR 1,387,040 gross per annum. Such salary (and any revised salary pursuant to clause 7.2) shall accrue from day to day but shall be paid monthly in arrears on the 19th day of each month into the Executive’s nominated bank account, subject to all statutory and other appropriate deductions in respect of income taxes, social charges, social security liabilities (both of the Company and the Executive) and similar liabilities, irrespective of their statutory name and jurisdiction due as appropriate to relevant statutory taxing and Revenue authorities and such other deductions which the Company is obliged by law or requested by the Executive or entitled under this Agreement to make (the “Deductions”). The Company reserves the right to alter the method of payment of the Executive’s salary, as may be reasonably necessary in the particular circumstances.

 

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7.2Annual Review

 

The Executive’s salary provided for in clause 7.1 shall be subject to annual review by the compensation committee of the Parent Board. As a result of any such annual review, the compensation committee of the Parent Board shall not be under any obligation to make any increase in salary.

 

7.3Deductions

 

The Company shall, subject to the provision of reasonable notice to the Executive, and to the extent permitted by law, be entitled to deduct from the Executive’s salary all sums or any other sum due to the Executive from time to time owed by the Executive to any Group Company, and by his execution hereof, the Executive consents to the deduction of such sums.

 

7.4Bonus

 

In addition to his salary, from the commencement of the Parent’s Fiscal Year 2025, the Executive shall be eligible to participate in the Annual Incentive Plan (the “Scheme”), details of which are available on application to the compensation committee of the Parent Board. The Executive’s participation in the Scheme is subject to the terms and conditions of the Scheme as may be amended from time to time by the compensation committee of the Parent Board.

 

7.5LTIP

 

The Executive shall also be eligible to participate in the Parent’s Annual Long-Term Incentive Programme (the “LTIP”), details of which are available on application to the compensation committee of the Parent Board. The Executive’s participation in the LTIP is subject to the terms and conditions of the LTIP as may be amended from time to time by the compensation committee of the Parent Board. The Executive acknowledges that the terms and conditions of the Employment as set out in this Agreement shall not be affected in any way by any participation by him in the LTIP which the Executive agrees and affirms shall not form part of such terms and conditions of employment (either expressly or impliedly) including, without limitation, as part of his remuneration under this Agreement.

 

8Expenses

 

8.1Reimbursement

 

The Company shall reimburse to the Executive all reasonable travelling, hotel, entertainment and other out of pocket expenses properly and wholly incurred by him in the performance of his duties, subject to the Executive’s adherence to the Group’s Expenses Policy, which may be amended from time to time. Failure to submit expenses in accordance with the Group’s Expenses Policy may result in non-payment.

 

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8.2Credit or Charge Card

 

Where the Company issues a Company sponsored credit or charge card to the Executive, he shall use such card only for expenses reimbursable under clause 8.1 above.

 

8.3Club Membership

 

On production of valid invoices, the Company shall reimburse the Executive’s membership fees which relate solely to his annual membership of two clubs, which clubs are to be selected by the Executive but subject to approval by the Parent Board.

 

9Pension

 

9.1The Company is not obliged to make any employer contributions to a Company pension scheme for the benefit of the Executive.

 

9.2Subject to the making of all relevant Deductions, the Executive shall be entitled to a retirement cash allowance, equivalent to 10% of his annual base salary, to be paid monthly in arrears on the 19th day of each month.

 

9.3Notwithstanding 9.2 above, an Automatic Enrolment Retirement Savings System (the “AE System”) is expected to be introduced in Ireland in 2025.  When the AE System commences, it is anticipated that the Company will be required to pay contributions in respect of the Executive to the AE System or the Company’s pension scheme.  For the avoidance of doubt:

 

9.3.1The Executive’s pension cash allowance as detailed at 9.2 will be adjusted to reflect any contributions made by the Company to the AE System or the Company’s pension scheme in respect of the Executive; and

 

9.3.2in the event that the Executive is auto-enrolled into the AE System the Company reserves the right to cease or vary the payment of any contributions made for the benefit of the Executive to the Company’s pension scheme (if applicable).

 

10Insured Benefits

 

Subject to (and conditional upon) clauses 10.4 to 10.6, the Company shall provide the following benefits to the Executive:

 

10.1Permanent Health Insurance (PHI)

 

10.1.1The Executive shall be entitled to participate in the Company’s PHI scheme at the Company’s expense. Full details of the PHI scheme are available from the Company’s HR Department.

 

10.1.2The Company shall only be obliged to make payments to the Executive under the PHI scheme if it has received payment from the insurance provider for that purpose.

 

10.2Private Medical Insurance

 

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10.2.1The Executive and the Executive’s spouse and dependent children shall be entitled to participate in the Company’s private medical insurance scheme. Full details of the Company’s private medical scheme are available from the HR Department.

 

10.3Life Assurance

 

The Executive shall be entitled to participate in the Company’s life assurance scheme, at the Company’s expense, to pay the Executive’s dependents a sum equal to 4 times the Executive’s salary if the Executive dies during his employment. Full details of the Company’s life assurance scheme are available from the Company’s HR Department.

 

10.3.1The Executive’s entitlement to the insurance benefits in this clause shall cease on the Termination Date and the Executive shall not be entitled to claim any compensation for loss of such benefits as part of any claim for damages or compensation.

 

10.4All insured benefits in this clause 10 are subject to:

 

10.4.1the policy terms, conditions and rules of the relevant schemes, as amended from time to time; and

 

10.4.2the Executive and, if appropriate, the Executive’s spouse and / or dependent children satisfying the normal underwriting requirements of the relevant insurance provider.

 

10.5The Executive’s entitlement to the insurance benefits in this clause shall cease on the Termination Date and the Executive shall not be entitled to claim any compensation for loss of such benefits as part of any claim for damages or compensation in relation to the termination of his employment, howsoever arising. Nothing in this Agreement shall prevent the Company from terminating the Executive’s employment for any reason whatsoever even where the effect of termination is to prejudice, prevent or terminate an actual or prospective claim under any PHI scheme.

 

10.6In the event that the insurer of any insured benefit does not meet a claim made by the Executive (or on behalf of the Executive) or the Executive’s spouse or dependent children or on the Executive’s behalf, then the Executive will have no claim against the Company in respect of that insured benefit.

 

11Car

 

During the Employment, and while the Executive holds a valid driving licence, the Company shall provide a car benefit to be agreed with the Executive and subject to the Company’s Car Policy as may be in force from time to time.

 

12Annual Leave

 

12.1Amount of Annual Leave

 

The Executive shall be entitled to 30 days’ annual leave (in addition to statutory public holidays) in each holiday year to be taken in accordance with the Organisation of Working Time Act, 1997.

 

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12.2Payment in Lieu of Accrued Leave

 

Annual leave entitlement shall be deemed to accrue on a pro rata basis and on the termination of this Agreement howsoever arising the Executive shall be entitled to pay in lieu of all accrued but unused annual leave entitlement up to and including the Termination Date only and shall be required to repay to the Company pay for annual leave taken in excess of entitlement.

 

12.3Basis of Leave

 

12.3.1The Company’s holiday year commences on 1 January and ends on 31 December. The Executive shall comply with the Company’s annual leave policy as may be in force from time to time.

 

12.3.2In the event that notice of termination of the Employment is served by either party, the Company may require the Executive to take any outstanding holiday during his notice period.

 

13Incapacity

 

13.1Sick Pay Scheme

 

The Executive shall comply with the Company’s sickness and absence policy in force from time to time. The Company operates a sick pay scheme, details of which can be found in the Company’s sickness absence policy. Any payment of sick pay shall be subject to (i) the rules of the scheme as may be amended from time to time, (ii) the Executive’s compliance with this clause 13 and (iii) his adherence to any directions and / or advice issued to him by the medical practitioners nominated by the Company pursuant to clause 13.2.

 

13.2Medical Examinations

 

The Company or the Parent Board may (at its expense) at any time whether or not the Executive is then incapacitated, require the Executive to submit to such medical examinations and tests by medical practitioners nominated by the Company at the expense of the Company or Parent and the Executive hereby submits to such medical examination and tests and hereby authorises such medical practitioners to disclose to, and discuss with, the Company and the Parent Board and its medical advisers the results of such examinations and tests.

 

14Severance Plan

 

The Executive shall be eligible to participate in the Parent’s Executive Severance Plan, details of which are available on application to the Chairperson of the Compensation Committee of the Parent Board, subject to the terms and conditions of such plan as may be amended from time to time by the Parent. For the avoidance of doubt, any payment under such plan shall not form part of the Executive’s remuneration for the purposes of the Employment.

 

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15Grievance and Disciplinary Matters

 

15.1A copy of the Company’s disciplinary, dismissal and grievance procedures are set out in the Company Handbook (a copy of which has been provided to the Executive). These procedures do not form part of the Executive’s contract of employment.

 

15.2All grievances which the Executive may have in the first instance shall be referred to the Chairperson of the Parent Board or where the grievance relates to the Chairperson such other person as the Parent Board, in its absolute discretion, determines. If not resolved, the matter shall be referred to the Parent Board, whose decision shall be final.

 

16Garden Leave

 

16.1Following service of notice to terminate the Employment by either party under clause 17 or if the Executive resigns without giving due notice and the Company does not accept his resignation, the Company may, at its absolute discretion, require that the Executive does not attend the Company premises or have contact with other staff or clients of any Group Company, for such period as the Company feels is reasonable.

 

16.2During Garden Leave, the Company, the Parent and / or any other relevant Associated Undertaking shall not be obliged to provide any work for the Executive or to assign to or vest in the Executive any powers, duties or functions and may for all or part of such Garden Leave do any or all of the following:

 

16.2.1announce externally or internally or both that the Executive has given or been given notice of termination of the Employment or any office(s) and been placed on Garden Leave and (where applicable) that a substitute has been appointed;

 

16.2.2exclude the Executive from all or any premises of any Group Company and require the Executive to carry out no duties;

 

16.2.3require the Executive to abstain from engaging in any contact (whether or not initiated by him) which concerns any of the business affairs of any Group Company with any customer, client, supplier, other business connection, employee, director, officer, consultant or agent of the Company or any associate of any Group Company without the prior written consent of the Board;

 

16.2.4save where absent due to agreed holidays or authorised absence for sickness or injury or other authorised leave, require the Executive to undertake at his home or at such place reasonably nominated by the Company such reasonable duties (which may differ from the Executive’s normal duties) as the Company, the Parent or any other relevant Associated Undertaking may at its discretion assign and to provide any reasonable assistance requested by the relevant Group Company;

 

16.2.5suspend or limit the Executive’s access to any Group Company’s computer, e-mail, telephone, voicemail or other communication systems or databases;

 

16.2.6exercise its rights under sub clause 16.5.

 

16.3During Garden Leave:

 

16.3.1the Executive shall continue to receive basic salary and contractual benefits (excluding bonuses);

 

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16.3.2the Company may require the Executive to take any outstanding holiday entitlement;

 

16.3.3the Executive shall not use social networking websites and / or business networking websites to seek alternative employment without the prior written consent of the Company and shall confirm in writing on termination of employment with the Company that his profiles on business networking websites have been updated;

 

16.3.4the Executive shall provide such assistance as any Group Company may require to effect an orderly handover of his responsibilities to any individual or individuals appointed by any Group Company to take over his role or responsibilities;

 

16.3.5the Executive shall remain readily contactable and available for work. In the event that the Executive is not available for work having been requested by the Company or other Group Company to do so, the Executive shall, notwithstanding any other provision of this Agreement, forfeit any right to basic salary and contractual benefits; and

 

16.3.6the Company, the Parent and / or relevant other Group company may appoint another person to carry out his duties in substitution for the Executive.

 

16.4All duties of the Executive to the Group (whether express or implied), including without limitation his duties of fidelity, good faith and exclusive service, shall continue during Garden Leave save as expressly varied by this clause 16.

 

16.5The Executive agrees that the exercise by the Company (whether for itself and / or for and on behalf of another Group Company) of its rights pursuant to this clause 16 shall not entitle the Executive to claim that he has been constructively dismissed.

 

16.6The Executive shall have no eligibility for any bonus (including the bonus referred to in clause 7.4) in respect of any period of Garden Leave and shall have no claim in respect of the effect (if any) which any such Garden Leave may have on his eligibility in respect of any other period.

 

17Duration and Termination

 

17.1Duration

 

If either party wishes to terminate the Employment, it should give to the other twelve months’ notice in writing. This does not preclude the Company from terminating the Employment without notice in certain circumstances.

 

17.2Payment in Lieu of Notice

 

17.2.1It is acknowledged by the Executive that the Company may, in its absolute discretion and without any obligation to do so, terminate the Employment forthwith at any time and with immediate effect by notifying the Executive that: (a) it is doing so; and (b) that it will make a payment in lieu of notice (“PILON”).

 

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17.2.2Subject to the terms and conditions of the Parent’s Executive Severance Plan as referred to in clause 14, if the Company exercises its right to terminate pursuant to this clause 17.2.2, the PILON will consist of basic salary but not any other benefits. For the avoidance of doubt, any PILON will not include any element in relation to:

 

(a)any bonus payments that might otherwise have been due to the Executive during the period for which PILON is made; and

 

(b)any payment in respect of benefits which the Executive would have been entitled to receive during the period for which PILON is made; and

 

(c)any payment in respect of any holiday entitlement that would have accrued during the period for which the PILON is made.

 

For the avoidance of doubt, where the Executive receives a PILON payment under the Parent’s Executive Severance Plan, he shall not be entitled to also receive any payment in relation to notice whether under this clause 17.2.2. or otherwise.

 

17.2.3Subject to the terms and conditions of the Parent’s Executive Severance Plan as referred to in clause 14, the Company may pay any PILON in equal monthly instalments until the end of the period for which PILON is made.

 

17.2.4Subject to the terms and conditions of the Parent’s Executive Severance Plan as referred to in clause 14, the PILON shall be subject to all relevant Deductions.

 

17.3Immediate Termination

 

The Employment may be terminated immediately without notice or PILON where the Executive:

 

17.3.1is guilty of gross misconduct which includes (but is not limited to dishonesty) fraud, theft, causing or threatening physical harm and / or damaging Company property or property of an Associated Undertaking; or

 

17.3.2commits a material or repeated breach or non-observance of any of the provisions of this Agreement or fails to observe the lawful directions of the Board or Parent Board; or

 

17.3.3acts in a manner which in the reasonable opinion of the Board or Parent Board brings any Group Company into disrepute or otherwise prejudices or is considered likely to prejudice the reputation of any Group Company; or

 

17.3.4is adjudicated bankrupt or commits any act of bankruptcy or makes any arrangement or composition with his creditors; or

 

17.3.5becomes of unsound mind or shall be or become a patient for the purposes of any mental health acts such that he is unable to perform his duties under this Agreement; or

 

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17.3.6is convicted of any criminal offence (other than a road traffic offence which does not result in a custodial sentence) which in the reasonable opinion of the Board or Parent Board may affect his position in or the reputation of any Group Company; or

 

17.3.7is absent or unable through illness or injury to discharge in full his duties hereunder for a consecutive period of 90 days or for an aggregate period of 180 days in any period of 12 consecutive months; or

 

17.3.8ceases to be a director of the Company or is prohibited or disqualified by law from holding any office in any Group Company or any other company.

 

17.4Executive’s Obligations on Termination

 

On the Termination Date (for whatever reason and howsoever caused), or at the Company’s request following the Executive having been placed on Garden Leave pursuant to clause 16, the Executive shall promptly:

 

17.4.1resign from all offices held by him in any Group Company and from all other appointments or offices which he holds as nominee or representative of the Company or of any Associated Undertaking and do all such acts and things (if any) as may be necessary to make any such resignations effective; and

 

17.4.2deliver up to the Company (to whomever the Board or Parent Board specifies), without destruction, deletion or redaction of any data or images, and all original copies or extracts of:

 

(a)correspondence, documents (including list of customers), laptops, computer drives, computer disks, other computer equipment (including leads and cables), tapes, mobile telephones, wireless devices (or similar equipment), credit cards, security passes, keys, car provided by the Company (which is to be returned in good condition allowing for fair wear and tear) and other tangible items, which are in his possession or under his control and which belong to or are leased or hired by any Group Company; and

 

(b)correspondence and documents (including lists of customers) in his possession or under his control which contain or refer to any Confidential Information; and

 

(c)minutes of meetings and other papers of the Board and Parent Board and of any board of directors of any Associated Undertaking which are in his possession or under his control,

 

17.4.3having forwarded a copy to the Company, irretrievably delete any and all Confidential Information from any laptops, computer drives, computer disks, tapes mobile telephones, wireless devices (or similar equipment) or other re-usable material in the Executive’s possession or under his control (but which do not belong to any Group Company).

 

The Executive shall produce such evidence of his compliance with sub-clauses 17.4.2 and 17.4.3 as the Company may reasonably require.

 

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17.5The termination of this Agreement shall not affect such of the provisions of this Agreement as are expressed to operate or have effect thereafter and shall be without prejudice to any right of action already accrued to either party in respect of any breach of this Agreement by the other party.

 

17.6The Company shall upon termination pay to the Executive all accrued and unpaid remuneration, fees and expenses due under the terms of this Agreement, less any amounts owing by the Executive to any Group Company.

 

18Confidentiality

 

18.1Use of Confidential Information

 

18.1.1The Executive acknowledges that, during the Employment, he will have access to Confidential Information and has therefore agreed to accept the restrictions in this clause. The Executive shall not during the continuance of this Agreement or at any time thereafter except as authorised by the Board or Parent Board in the proper performance of his duties hereunder disclose or cause to be disclosed to any person or use for his own purposes or for any purposes other than those of the Group any Confidential Information which he may have received or obtained during his employment with the Company, work with the Parent or during the continuance of this Agreement or information in respect of which any Group Company is bound by an obligation of confidence to a third party and he shall use his best endeavours to prevent the publication or disclosure of any such information.

 

18.1.2All notes, memoranda, documents, records and writing made, received or obtained by the Executive on any matters relating to the organisation, business, finance, customers, suppliers, dealings, transactions or affairs of any Group Company shall be treated as confidential and shall be and remain the property of the relevant Group Company and shall be delivered by the Executive to the relevant Group Company forthwith upon request.

 

18.1.3The restrictions contained in this clause shall not apply to:

 

(a)any disclosure authorised by the Board or Parent Board or required in the ordinary and proper course of the Employment or as required by the order of a court of competent jurisdiction or an appropriate regulatory authority; or

 

(b)any information which the Executive can demonstrate was known to the Executive prior to the commencement of the Employment or is in the public domain otherwise than as a result of a breach of this clause.

 

19Restrictive Covenants

 

19.1For the purposes of this clause 19:

 

“Key Employee” means the senior leadership team of the Group from time to time;

 

“Relevant Business” means the business or businesses from time to time carried on by the Company, the Parent and / or any other Associated Undertaking, limited to the activities with which the Executive was materially concerned or involved in the course of his employment during the Relevant Period, or in respect of which the Executive possessed a material amount of Confidential Information as at the Relevant Date;

 

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“Relevant Date” means the earlier of (a) the Termination Date (howsoever arising); or (b) the date on which the Executive commences Garden Leave pursuant to this Agreement;

 

“Relevant Period” means the twelve months prior to, and including, the Relevant Date;

 

“Restricted Area” means Ireland, the US, the UK, the Netherlands and any other country in which the Company, the Parent and / or any other Associated Undertaking carries on a material amount of Relevant Business or intends to carry on Relevant Business, where such intention is reasonably within the knowledge of the Executive, as at the Relevant Date;

 

“Restricted Person” means any Person with whom the Executive had material or regular dealings at any time during the Relevant Period, or in relation to whose dealings with the Company, the Parent and / or any other Associated Undertaking the Executive possessed a material amount of Confidential Information as at the Relevant Date;

 

“Restricted Products or Services” shall mean products or services of the same type as or similar to or competitive with any products or services supplied by the Company, the Parent and / or any other Associated Undertaking at the Relevant Date, in the sale or supply of which the Executive shall have been involved to any material extent at any time during the Relevant Period;

 

19.2The Executive acknowledges:

 

§that the Group is in a unique and highly specialised business, which is international in scope with a limited number of competitors;

 

§that the Group possess a valuable body of Confidential Information and that the Executive’s knowledge of Confidential Information directly benefits him by enabling him to perform his duties;

 

§that the protection of Confidential Information, customer connections, supplier connections, goodwill, and the stability of the workforce of the Company, the Parent and / or any other Associated Undertaking are business interests requiring protection; and

 

§that the disclosure of any Confidential Information to any actual or potential competitor of the Company, the Parent and / or any other Associated Undertaking would place the Company and / or it’s relevant Associated Undertaking(s) at a serious competitive disadvantage and would cause immeasurable (financial and other) damage to the Relevant Business.

 

19.3Non-Compete Restriction

 

The Executive agrees with the Company that to protect the Company’s legitimate business interests (and / or those of the Parent and / or any other relevant Associated Undertaking) including those set out at clause 19.2, during the Employment and for a period of twelve months after the Relevant Date, the Executive shall not within the Restricted Area, without the prior written consent of the Company, directly or indirectly in any capacity (limited to a role that is of the same, similar or greater seniority, status and remuneration as your role of executive director and President and Group Chief Executive Officer, as determined on the basis of the prevailing industry norm for a role commensurate with any such role) either on his own behalf or in conjunction with or on behalf of any other Person, be engaged, concerned or interested in the Relevant Business or in any business wholly or partly in competition with the Relevant Business, save that he may hold for investment:

 

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19.3.1up to 3% of any class of securities quoted or dealt in on a recognised investment exchange; and

 

19.3.2up to 10% of any class of securities not so quoted or dealt.

 

19.4Non-Solicitation / Non-Deal Restrictions

 

The Executive agrees with the Company that to protect the Company’s legitimate business interests (and / or those of the Parent and / or any other relevant Associated Undertaking) including those set out at clause 19.2, during the Employment and for a period of twelve months after the Relevant Date, the Executive shall not within the Restricted Area, without the prior written consent of the Company, directly or indirectly in any capacity either on his own behalf or in conjunction with or on behalf of any other Person:

 

19.4.1accept orders for or supply or cause orders to be accepted for or cause to be supplied Restricted Products or Services to any Restricted Person who:

 

(a)was provided with products or services by the Company, the Parent or any other Associated Undertaking at any time during the Relevant Period; or

 

(b)who was negotiating with the Company, the Parent or any other Associated Undertaking in relation to orders for or the supply of products or services from the Company, the Parent or any other Associated Undertaking at any time during the Relevant Period.

 

19.4.2solicit, canvass or approach or endeavour to solicit, canvass or approach or cause to be solicited, canvassed or approached any Restricted Person who:

 

(a)was provided with products or services by the Company, the Parent and / or any other Associated Undertaking at any time during the Relevant Period; or

 

(b)was negotiating with the Company, the Parent and / or any other Associated Undertaking in relation to orders for or the supply of products or services from the Company, the Parent and / or any other Associated Undertaking at any time during the Relevant Period,

 

for the purpose of offering to that Person Restricted Products or Services.

 

19.4.3interfere or seek to interfere or take steps as may interfere with the supplies (or the prospective supplies) to the Company, the Parent and / or any other Associated Undertaking (or the terms relating to such supplies) from any Restricted Person who:

 

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(a)supplied components, materials, products or services to the Company, the Parent and / or any other Associated Undertaking at any time during the Relevant Period;

 

(b)was negotiating with the Company, the Parent and / or any other Associated Undertaking in relation to the supply of components, materials, products or services to the Company, the Parent and / or any other Associated Undertaking at any time during the Relevant Period.

 

19.4.4solicit or entice away or endeavour to solicit or entice away or cause to be solicited or enticed away from the Company, the Parent and / or any other Associated Undertaking any Person with whom the Executive worked with, or had managerial responsibility for, at any time during Relevant Period (or in relation to whom, as at the Relevant Date, the Executive possessed a material amount of Confidential Information) and:

 

(a)who was, at the Relevant Date, a Key Employee; and

 

(b)whose departure from the Company, the Parent and / or any other Associated Undertaking would have a material adverse effect on the business of such undertaking.

 

19.5The Executive agrees that he will not, after the Termination Date, whether directly or indirectly, use in connection with any business, any name that includes the name of the Company, the Parent and / or any other Associated Undertaking, or any colourable imitation of such names, and that he shall not represent himself or permit himself to be held out as being in any way connected with or interested in the business of the Company, the Parent and / or any other Associated Undertaking and that he shall take such steps as are necessary to comply with this obligation (including, but not limited to, by amending his social media profile) provided that such steps are not inconsistent with the Executive’s on-going obligations under this Agreement.

 

19.6The Executive agrees that if, during the continuance in force of the restrictions set out in this clause 19, he receives an offer of employment from any Person, he will immediately provide that Person with a complete and accurate copy of the restrictions set out herein.

 

19.7The Executive acknowledges and confirms that the restrictions set out in this clause are reasonable and go no further than is reasonably necessary to protect the legitimate business interests of the Company, the Parent and / or any other Associated Undertaking (including, but not limited to, those interests acknowledged by the Executive in clause 19.2 of this Agreement).

 

19.8Nothing contained in this clause 19 shall act to prevent the Executive from using generic skills learnt while employed by the Company, the Parent and / or any other Associated Undertaking in any business or activity which is not in competition with the Company.

 

19.9Each of the restrictions set out in this clause 19 is separate and severable and in the event of any such restriction (including the defined expressions) being determined as being unenforceable in whole or in part for any reason such unenforceability shall not affect the enforceability of the remaining restrictions or, in the case of part of a restriction being unenforceable, the remainder of that restriction.

 

19.10The Executive acknowledges and confirms that he shall at the request (and cost) of the Company enter into a further agreement with the Parent and / or any other Associated Undertaking whereby he shall accept restrictions corresponding to the restrictions in this Agreement.

 

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20Use of Intellectual Property

 

20.1Applicability

 

“Works” means all Intellectual Property Rights (including any extensions and renewals thereof and including the right to sue for damages and other remedies in respect of any past infringements) which arise as a result of any creation, invention or discovery made by the Executive whether alone or with any other person at any time during either (a) the course of his employment with the Company; or (b) outside the course of his employment if the Intellectual Property Rights relate directly or indirectly to the business of the Group or which may, in the sole opinion of the Company, be capable of being used or adapted for by any Group Company.

 

20.2Property of the Company

 

20.2.1The Executive hereby agrees and acknowledges that all Works shall automatically belong to the Company to the fullest extent permitted by law.

 

20.2.2To the extent that any Intellectual Property Rights in any Works do not automatically vest in the Company (either at law or by virtue of this Agreement) the Executive hereby assigns to the Company (or, at the direction of the Company, to an Associated Undertaking) as a present and future assignment, all Intellectual Property Rights throughout the world for the maximum duration of such rights.

 

20.2.3To the extent that any Intellectual Property Rights are incapable of being assigned to the Company (or an Associated Undertaking) under applicable law, then the Executive hereby grants to the Company (or an Associated Undertaking) an exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide licence to use such Intellectual Property Rights to the fullest extent permitted by law (including the right to sub-license and to assign all of these rights).

 

20.3Undertakings by Executive

 

The Executive hereby:

 

20.3.1Undertakes to disclose to the Company in writing full details of all Works upon the creation, invention or discovery of the same, and promptly whenever requested by the Company and in any event upon the termination of the Employment deliver up to the Company all correspondence and other documents, papers and records and all copies thereof in his possession, custody or power relating to any Intellectual Property Rights;

 

20.3.2irrevocably and unconditionally waives all moral rights granted by Chapter 7 of the Copyright and Related Rights Act 2000 (and all similar rights in other jurisdictions) that vest in the Executive at any time in connection with the Works and the Executive agrees not to initiate, support or maintain any action or claim to the effect that any treatment, exploitation or use of such work infringes such right;

 

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20.3.3undertakes, at the expense of the Company, to execute all such documents, make such applications, give such assistance and do such acts and things as may in the opinion of the Board be necessary or desirable in order to give effect to this clause; and

 

20.3.4irrevocably appoints the Company or its nominee as the attorney of the Executive to execute all documents as the Company may consider necessary to give effect to this clause.

 

21Data Protection

 

21.1The Company holds and processes the Executive’s personal data for legal, personnel, administrative and management purposes in accordance with applicable laws and as outlined in all applicable Company Data Protection Policies and the Employee Privacy Statement, as may be in force from time to time.

 

21.2The Executive agrees to comply with the Applicable Data Protection Laws and agrees to review and abide by the terms of the Company’s and Group’s policy(ies) on data protection, a copy of which is set out in the Company Handbook.

 

21.3The Executive acknowledges that the Company may monitor and/or record his use of office equipment, including but not limited to email and Internet, and mobile telephones, in order to ascertain compliance with the Company’s and Group’s policies, detect unauthorised use or misconduct, and otherwise ensure the effective operation of the systems.

 

22Notices

 

22.1Any notice or other communication whether required or permitted to be given in accordance with this clause 22 shall be given in writing and shall be deemed to have been duly given if delivered by hand, sent by email, if sent by registered or recorded delivery post (if within Ireland) or if sent by registered express airmail post (if outside Ireland) correctly addressed to the relevant party’s address as specified in this contract or at such other address as such party may designate from time to time in writing in accordance with this 22 and marked for the attention of the company’s secretary in the case of notices addressed to the company

 

22.2In the absence of evidence of earlier receipt, any such notice shall take effect from the time that it is deemed to have been duly given, namely:

 

22.2.1if delivered by hand, at the time of delivery;

 

22.2.2if sent by email, at the time the email is sent;

 

22.2.3if sent by post within Ireland, two days after posting (exclusive of Saturdays, Sundays and public holidays);

 

22.2.4if sent by post to or from outside Ireland, five days after posting (exclusive of Saturdays, Sundays and public holidays).

 

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22.3The Executive undertakes to provide the Company, upon request, with an address in Ireland and / or email address for service of notices pursuant to this 22.

 

23Miscellaneous

 

23.1Variation

 

No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties hereto.

 

23.2Counterparts

 

This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts each of which when executed and delivered shall constitute an original and all such counterparts together constituting one and the same instrument.

 

23.3Terms of Employment (Information) Act 1994

 

This Agreement shall form the statement of the Executive’s terms and conditions of employment in compliance with the provisions of the Terms of Employment (Information) Act 1994 (as amended).

 

23.4Whole Agreement

 

Each of the Executive and the Company (on behalf of itself and its Associated Undertakings) confirms that this Agreement contains the whole agreement between the parties hereto relating to the matters provided for in this Agreement and supersedes all previous agreements (if any) between such parties in respect of such matters and each of the parties to this Agreement acknowledges that in agreeing to enter into this Agreement it has not relied on any representations or warranties except for those contained in this Agreement.

 

24Governing Law

 

This Agreement shall be governed by and construed in accordance with the laws of Ireland and the courts of Ireland shall have exclusive jurisdiction to deal with all disputes arising from or touching upon this Agreement.

 

This Agreement has been entered into on the date stated at the beginning of it.

 

[Remainder of page left intentionally blank – signature page follows]

 

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Signed by    
ANTHONY P.J. SMURFIT    
in the presence of:    
     
/s/ Amanda Morris   /s/ Anthony P.J. Smurfit
Witness’ Signature   Anthony P.J. Smurfit
     
Amanda Morris    
Witness’ Name    
     
Beech Hill, Clonskeagh, Dublin 4    
Witness’ Address    
     
Executive Assistant    
Witness’ Occupation    

 

Signed by: /s/ Gillian Carson-Callan   Gillian Carson-Callan
duly authorised for and on behalf of   Authorised signatory
SMURFIT KAPPA SERVICES LIMITED    

 

[Service Contract – Anthony P.J. Smurfit – Signature Page]

 

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Exhibit 10.19

 

 

Smurfit Westrock plc
Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.
Tel: +353 (0)1 202 7000, Fax: +353 (0)1 269 4481
smurfitwestrock.com

 

Service Contract

 

Between Smurfit Kappa Italia S.p.A. and Saverio Mayer

 

THIS AGREEMENT, is made on 5 July 2024

 

BETWEEN

 

(1)Smurfit Kappa Italia S.p.A., a company incorporated under the laws of Italy, with registered office in via Vincenzo Monti n. 12, 20123, Milano, VAT number 02124341203 (the “Company”)

 

AND

 

(2)SAVERIO MAYER, of [ADDRESS] (the “Executive”)

 

WITNESSETH as follows:

 

1Interpretation

 

1.1Definitions

 

In this Agreement unless the context otherwise requires or unless otherwise specified:

 

“Agreement” means this employment agreement and any subsequent amendments thereto;

 

“Associated Undertaking” means any undertaking which from time to time is a subsidiary of the Company or is a holding company of the Company or a subsidiary of any such holding company or is affiliated with the Company;

 

“Board” means the board of directors of the Company from time to time and includes any person or committee duly authorised by the board of directors to act on its behalf for the purposes of this Agreement;

 

“CBA” means the National Collective Bargaining Agreement for the executives (dirigenti) of the industrial sector (Contratto Collettivo Nazionale di Lavoro per i dirigenti delle aziende industriali) from time to time in force;

 

“CEO” means the President and Group Chief Executive Officer;

 

“Commencement Date” means 5 July 2024;

 

Smurfit Westrock public limited company. Registered in Ireland No.607515. Registered office: Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.

 

Directors: Irial Finan Chair, Anthony Smurfit President & Group Chief Executive Officer, Ken Bowles Executive Vice President & Group Chief Financial Officer, Kaisa Hietala Senior Independent Director (Finland), Colleen F Arnold (USA), Tim J Bernlohr (USA), Terrell K Crews (USA), Carol Fairweather (UK), Suzan F Harrison (USA), Mary Lynn Ferguson-McHugh (USA), Lourdes Melgar (Mexico), Jørgen Buhl Rasmussen (Denmark), Dmitri L Stockton (USA), Alan D Wilson (USA).

 

Secretary: Gillian Carson-Callan.

 

 

 

 

 

“Confidential Information” means all and any information, whether or not recorded, of any Group Company which the Executive (or, where the context so requires, another person) has obtained by virtue of his employment or engagement and which relevant Group Company regards as confidential or in respect of which the relevant Group Company is bound by an obligation of confidence to a third party, including:

 

(a)all and any information relating to business methods, corporate plans, future business strategy, management systems, finances, and maturing new business opportunities;

 

(b)all and any information relating to research or development projects or both;

 

(c)all and any information concerning the curriculum vitae, remuneration details, work-related experience, attributes and other personal information concerning those employed or engaged by any Group Company;

 

(d)all and any information relating to marketing or sales of any past present or future product or service of any Group Company including sales targets and statistics, market share and pricing statistics, marketing surveys and strategies, marketing research reports, sales techniques, price lists, mark-ups, discounts, rebates, tenders, advertising and promotional material, credit and payment policies and procedures, and lists and details of customers, prospective customers, suppliers and prospective suppliers including their identities, business requirements and contractual negotiations and arrangements with any Group Company;

 

(e)all and any trade secrets, secret formulae, processes, inventions, design, know-how, technical specification and other technical information in relation to the creation, production or supply of any past, present or future product or service of any Group Company, including all and any information relating to the working of any product, process, invention, improvement or development carried on or used by any Group Company or any associate of any Group Company and information concerning the intellectual property portfolio and strategy of any Group Company or of any associate of any Group Company;

 

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but excluding any information which:

 

(i)is part of the Executive's own stock in trade;

 

(ii)is readily ascertainable to persons not connected with the Group without significant expenditure of labour, skill or money; or

 

(iii)which becomes available to the public generally other than by reason of a breach by the Executive of his obligations under this Agreement;

 

“Employment” means the Executive’s employment under this Agreement or, where the context permits or requires, the duration of the Executive’s employment under this Agreement;

 

“Group” means the Company, the Parent and all other Associated Undertakings and all references to 'Group Company' shall be construed accordingly;

 

“Intellectual Property Rights” means all intellectual property rights in any part of the world and includes patents, utility models, rights in inventions, registered and unregistered trade and service marks, rights in business and trade names and get-up, rights in domain names, registered designs, unregistered rights in designs, semiconductor topography rights, copyrights and related rights (including software copyright), rights in performances, database rights, rights in know-how and all other intellectual property rights (whether or not registered and including registrations and applications for registration) and all similar rights or forms of protection which may exist anywhere in the world;

 

“Parent" means Smurfit WestRock plc a public limited company, incorporated under the laws of Ireland with company registration number 607515 , having its registered address at Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland;

 

“Parent Board” means the board of directors of the Parent from time to time and includes any person or committee duly authorised by the board of directors to act on its behalf for the purposes of this Agreement;

 

"Person” means any individual person, firm, company, partnership, unincorporated association, joint venture or other legal entity; and

 

“Termination Date” means the date on which the Employment terminates irrespective of the cause or manner.

 

2Appointment

 

2.1Basis of Employment

 

2.1.1The Company shall employ the Executive and the Executive shall serve the Company and the Parent as an executive employee (dirigente) under the CBA with the duties of President & Chief Executive Officer, Europe MEA & APAC of the Group or in any other executive capacity of similar status as the Company and / or the Parent may reasonably require within the limits provided for under article 2103 of the Italian Civil Code.

 

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2.1.2The Executive will have a hierarchical report to the Group Chief Executive Officer & President and a functional report to the Board.

 

2.1.3The Employment is deemed to have begun on the Commencement Date. For the purposes of continuity of service, the Executive’s employment with the Company began on 22 April 1986.

 

3Duties

 

3.1.1The duties of President & Chief Executive Officer, Europe MEA & APAC are listed under Appendix A to this Agreement.

 

3.1.2The Executive shall comply with his statutory fiduciary duties to the Company in accordance with article 2105 of the Italian Civil Code, the Parent and any other Associated Undertaking of which he becomes a director during the continuance of the Employment and, in particular, shall undertake and perform such duties and exercise such powers, authorities and directions in relation to his position as President & Chief Executive Officer, Europe MEA & APAC and its business as the CEO or the Parent Board (or such other person(s) authorised by the Parent Board) may from time to time at their sole discretion assign or delegate to or vest in him.

 

4Exclusivity of Service

 

4.1During the course of the Employment, the Executive must devote time, attention and skills exclusively to the business of the Group and he must use his best endeavours to promote the interests, business and welfare of the Group.

 

4.2In order to protect the Company and the Group's Confidential Information, to avoid any potential conflicts of interest, the Executive shall not during the course of the Employment (except as a representative of any Group Company) without the prior written consent of the Company or Parent Board and subject to clause 4.3, undertake nor, directly or indirectly be engaged, concerned or interested in, nor make preparations to be engaged, concerned or interested in, any other Person or become an employee, officer, servant or agent of or consultant to any other Person.

 

4.3Nothing in this clause shall preclude the Executive (if the Parent Board shall at its absolute discretion so agree in writing) from being concerned or taking an interest in or assuming responsibilities to (in any capacity whatsoever including without limitation to the generality of the foregoing as a director, officer, servant, agent or consultant) any company (which is not a member of the Group) or Person provided always that:

 

(a)the business or activity of such Person is not in conflict and does not compete and is not likely to compete with the business of the Company or any Associated Undertaking; and

 

(b)the Executive’s interest in and responsibilities towards such Person do not interfere with the proper performance by the Executive of his duties under this Agreement.

 

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5Directorships

 

5.1The Executive acknowledges and agrees that he may be appointed to other offices and/or positions and/or responsibilities within the Company and/or any Group Company. Any such additional appointment will be without prejudice to the Executive’s role as President & Chief Executive Officer, Europe MEA & APAC.

 

5.2The Executive must resign from any office held in any Group Company if he is asked to do so by the Company or the Parent Board without claim for compensation, subject to the Articles of Association of the relevant Group Company.

 

5.3The Executive shall receive no compensation for fulfilling the role of director of any Group Company or for membership of any committee formed by the board of any Group Company.

 

6Place and Hours of Work

 

6.1The Executive’s principal place of work shall be at Amsterdam at The Base, Building B (3rd Floor), Evert van de Beekstraat 1-106, Netherlands, or at such other place of business of the Company or any member of the Group as the Company or Parent Board shall reasonably require in accordance with article 2103 of the Italian Civil Code and the CBA. It is agreed between the parties that any change of the place of work will be made in consultation with, and with consent of, the Executive.

 

6.2The Executive shall be required and hereby agrees to travel to such places (whether inside or outside Netherlands) and in such manner and on such occasions as the Company or Parent Board may from time to time reasonably require in pursuance of his duties hereunder.

 

6.3The parties reciprocally acknowledge and agree that in the quantification of the compensation under clause 7.1 below they have taken into account the circumstance that the Executive shall travel very often and, as such, no further indemnities will be payable as “indennità di trasferta”, “rimborso spese non documentabili” or “diaria”. Notwithstanding the above, the Company will reimburse the Executive the expenses as provided for under clause 8.1 below.

 

6.4The Executive hereby acknowledges that as he is responsible for determining the duration of his own working time, he shall not be entitled to receive any additional remuneration for work outside normal business hours.

 

7Salary, Bonus and LTIP

 

7.1Base Salary

 

During the Employment, the Executive shall be paid a salary at the rate of EUR 762,872 gross per annum, payable in 13 monthly instalments in accordance with the CBA. Such salary (and any revised salary pursuant to clause 7.2) shall accrue from day to day but shall be paid by equal monthly instalments in arrears on the last working day of each month into the Executive’s nominated bank account, subject to income tax, social security contributions and such other deductions which the Company is obliged by law or requested by the Executive or entitled under this Agreement to make. The Company reserves the right to alter the method of payment of the Executive’s salary, as may be reasonably necessary in the particular circumstances.

 

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The portion of the annual base salary exceeding the minimum wage (minimo tabellare/trattamento economico minimo) provided by the CBA shall be considered an “absorbable extra-minimum” (superminimo assorbibile). This “absorbable extra-minimum” (superminimo assorbibile) anticipates and absorbs any future pay rise of any nature, including with retroactive effect, pursuant to any collective bargaining agreements, company-based collective agreements and applicable law, and supersedes any such different salary level, benefit or arrangement.

 

7.2Annual Review

 

The Executive’s salary provided for in clause 7.1 shall be subject to annual review by the compensation committee of the Parent Board. As a result of any such annual review, the compensation committee of the Parent Board shall not be under any obligation to make any increase in salary.

 

7.3Deductions

 

The Company shall, subject to the provision of reasonable notice to the Executive, and to the extent permitted by law, be entitled to deduct from the Executive’s salary all sums or any other sum due to the Executive from time to time owed by the Executive to any Group Company and by his execution hereof, the Executive consents to the deduction of such sums.

 

7.4Bonus

 

In addition to his salary, from the commencement of the Parent's Fiscal Year 2025, the Executive shall be eligible to participate in the Annual Incentive Plan (the "Scheme"), details of which are available on application to the compensation committee of the Parent. The Executive's participation in the Scheme is subject to the terms and conditions of the Scheme as may be amended from time to time by the compensation committee of the Parent Board.

 

7.5LTIP

 

The Executive shall also be eligible to participate in the Parent's Annual Long-Term Incentive Programme (the "LTIP"), details of which are available on application to the compensation committee of the Parent Board. The Executive's participation in the LTIP is subject to the terms and conditions of the LTIP as may be amended from time to time by the compensation committee of the Parent Board. The Executive acknowledges that the terms and conditions of the Employment as set out in this Agreement shall not be affected in any way by any participation by him in the LTIP which the Executive agrees and affirms shall not form part of such terms and conditions of employment (either expressly or impliedly) including, without limitation, as part of his remuneration under this Agreement.

 

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8Expenses

 

8.1Reimbursement

 

The Company shall reimburse to the Executive all reasonable travelling, hotel, entertainment and other out of pocket expenses properly and wholly incurred by him in the performance of his duties, subject to the Executive’s adherence to the Group's Expenses Policy. Failure to submit expenses in accordance with the Expenses Policy may result in non-payment.

 

8.2Credit or Charge Card

 

Where the Company issues a Company sponsored credit or charge card to the Executive, he shall use such card only for expenses reimbursable under clause 8.1 above.

 

9Pension

 

9.1The Executive is entitled to participate in the complementary pension benefit provided for under the PREVIRAS pension fund.

 

10Insured Benefits

 

Subject to (and conditional upon) clauses 10.4 to 10.6, the Company shall provide the following benefits to the Executive:

 

10.1Private Medical Insurance

 

10.1.1The Executive is entitled to participate in the supplementary healthcare assistance under the Fasi healthcare fund and to an additional medical insurance scheme as an integration to the Fasi fund. Full details of the medical schemes are available from the HR Department. The Executive can also benefit from an annual medical check-up as per the Company’s policies.

 

10.2Life Assurance

 

10.2.1The Executive shall be entitled to participate in the Company’s life assurance scheme, at the Company’s expense, to pay the Executive’s dependents a sum equal to 3 times the Executive’s salary if the Executive dies during his employment. Full details of the Company’s life assurance scheme are available from the Company’s HR Department.

 

10.3The Executive shall be entitled to the life, permanent disability and accident insurance covers for dirigenti provided for under the CBA.

 

10.4The Executive’s entitlement to the insurance benefits in this clause shall cease on the Termination Date and the Executive shall not be entitled to claim any compensation for loss of such benefits as part of any claim for damages or compensation. This is without prejudice to any more favourable treatment of the benefits provided for under the CBA, provided that the continuation of such benefits under the CBA does not create any cost for the Company, any entity in the Group or the Parent.

 

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10.5All insured benefits in this clause 10 are subject to:

 

10.5.1the policy terms, conditions and rules of the relevant schemes, as amended from time to time; and

 

10.5.2the Executive and, if appropriate, the Executive’s spouse, civil partner, or long term partner and / or dependent children satisfying the normal underwriting requirements of the relevant insurance provider.

 

10.6In the event that the insurer of any insured benefit does not meet a claim made by the Executive (or on behalf of the Executive) or the Executive’s spouse or dependent children or on the Executive’s behalf, then the Executive will have no claim against the Company in respect of that insured benefit.

 

11Car

 

11.1During the Employment, and while the Executive holds a valid driving licence, the Company shall provide a car benefit to be agreed with the Executive and subject to the Company’s Car Policy as may be in force from time to time.

 

12Annual Leave

 

12.1Amount of Annual Leave

 

The Executive shall be entitled to 35 days’ annual leave (in addition to statutory public holidays) in each holiday year (or such other number of days as provided in the CBA).

 

12.2Payment in Lieu of Accrued Leave

 

Annual leave entitlement shall be deemed to accrue on a pro rata basis and on the termination of this Agreement howsoever arising the Executive shall be entitled to pay in lieu of all accrued but unused annual leave entitlement up to and including the Termination Date only and shall be required to repay to the Company pay for annual leave taken in excess of entitlement.

 

12.3Basis of Leave

 

Details of the Executive’s holiday and leave entitlements are set out in the CBA.

 

13Severance Plan

 

13.1The Executive shall be eligible to participate in the Parent's Executive Severance Plan, details of which are available on application to the Chairperson of the Compensation Committee of the Parent Board, subject to the terms and conditions of such plan as may be amended from time to time by the Parent. For the avoidance of doubt, any payment under such plan shall not form part of the Executive's remuneration for the purposes of the Employment.

 

13.2It is understood between the Parties that the payments made according to the Executive Severance Plan absorb and replace any other indemnity, damages, or compensation due according to contract and/or law and/or the CBA in connection with the termination of the Employment as a consequence of any of the circumstances that trigger the payment of the severance under the Executive Severance Plan. However, if the indemnity, damages, or compensation due according to law and/or the CBA is more favourable to the Executive than the severance benefits provided for under the Executive Severance Plan, then the Executive will receive only the indemnity, damages, or compensation due according to law and/or the CBA with exclusion of any severance benefits provided for under the Executive Severance Plan.

 

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14Grievance and Disciplinary Matters

 

14.1The Parties acknowledge that disciplinary, dismissal and grievance procedures applicable to the Executive are set out in the CBA.

 

15Duration and Termination

 

15.1Duration

 

The Employment under this Agreement is open-ended.

 

In case of termination of the Employment pursuant to Article 2118 of the Italian Civil Code, the terminating party must communicate the intention to terminate to the other party in writing, giving the notice period provided by the CBA. This does not preclude the Company from terminating the Employment without notice in certain circumstances.

 

15.2Payment in Lieu of Notice

 

15.2.1It is acknowledged by the Executive that the Company may, in its absolute discretion and without any obligation to do so, terminate the Employment forthwith at any time and with immediate effect by notifying the Executive that: (a) it is doing so; and (b) that it will make a payment in lieu of notice (“PILON”) calculated in accordance with the Italian Civil Code and the CBA.

 

15.3Immediate Termination

 

The Employment may be terminated immediately without notice or PILON in case of circumstances of “cause” which would enable the Executive’s immediate dismissal pursuant to article 2119 of the Italian Civil Code.

 

15.4Executive’s Obligations on Termination

 

On the Termination Date (for whatever reason and howsoever caused), the Executive shall promptly:

 

15.4.1resign from all offices held by him in any Group Company and from all other appointments or offices which he holds as nominee or representative of the Company or of any Associated Undertaking and do all such acts and things (if any) as may be necessary to make any such resignations effective; and

 

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15.4.2deliver up to the Company (to whomever the Board of Parent Board specifies), without destruction, deletion or redaction of any data or images, and all original copies or extracts of:

 

(a)correspondence, documents (including list of customers), laptops, computer drives, computer disks, other computer equipment (including leads and cables), tapes, mobile telephones, wireless devices (or similar equipment), credit cards, security passes, keys, car provided by the Company (which is to be returned in good condition allowing for fair wear and tear) and other tangible items, which are in his possession or under his control and which belong to or are leased or hired by any Group Company; and

 

(b)correspondence and documents (including lists of customers) in his possession or under his control which contain or refer to any Confidential Information; and

 

(c)minutes of meetings and other papers of the Board and Parent Board and of any board of directors of any Associated Undertaking which are in his possession or under his control,

 

15.4.3having forwarded a copy to the Company, irretrievably delete any and all Confidential Information from any laptops, computer drives, computer disks, tapes mobile telephones, wireless devices (or similar equipment) or other re-usable material in the Executive’s possession or under his control (but which do not belong to any Group Company).

 

The Executive shall produce such evidence of his compliance with sub-clauses 15.4.2 and 15.4.3 as the Company may reasonably require.

 

15.5The termination of this Agreement shall not affect such of the provisions of this Agreement as are expressed to operate or have effect thereafter and shall be without prejudice to any right of action already accrued to either party in respect of any breach of this Agreement by the other party.

 

15.6The Company shall upon termination pay to the Executive all accrued and unpaid remuneration, TFR – Trattamento di Fine Rapporto (as of 22 April 1986 on), to the extent not already paid to a complementary pension fund, fees and expenses and any other amounts due under the terms of this Agreement and/or by law and/or under the CBA, save for what provided under clause 13.2 above, less any amounts owing by the Executive to the any Group Company.

 

15.7Clause 15 is without prejudice to the provisions set out in article 15 of the CBA (Responsabilità civile e/o penale connessa alla prestazione).

 

16Confidentiality

 

16.1Use of Confidential Information

 

16.1.1The Executive acknowledges that, during the Employment, he will have access to Confidential Information and has therefore agreed to accept the restrictions in this clause. The Executive shall not during the continuance of this Agreement or at any time thereafter except as authorised by the Board or Parent Board in the proper performance of his duties hereunder disclose or cause to be disclosed to any person or use for his own purposes or for any purposes other than those of the Group any Confidential Information which he may have received or obtained during his employment with the Company, work with the Parent or during the continuance of this Agreement or information in respect of which any Group Company is bound by an obligation of confidence to a third party and he shall use his best endeavours to prevent the publication or disclosure of any such information.

 

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16.1.2All notes, memoranda, documents, records and writing made, received or obtained by the Executive on any matters relating to the organisation, business, finance, customers, suppliers, dealings, transactions or affairs of any Group Company shall be treated as confidential and shall be and remain the property of the relevant Group Company and shall be delivered by the Executive to the relevant Group Company (as the case may be) forthwith upon request.

 

16.1.3The restrictions contained in this clause shall not apply to:

 

(a)any disclosure authorised by the Board or Parent Board or required in the ordinary and proper course of the Employment or as required by the order of a court of competent jurisdiction or an appropriate regulatory authority; or

 

(b)any information which the Executive can demonstrate was known to the Executive prior to the commencement of the Employment or is in the public domain otherwise than as a result of a breach of this clause.

 

17Restrictive Covenants

 

17.1For the purposes of this clause 17:

 

“Key Employee” means the senior leadership team of the Group from time to time;

 

“Relevant Business” means the business of paper packaging;

 

“Restricted Area” means Europe and the following USA states: Georgia, Florida, Illinois and Tennessee;

 

“Restricted Person” means any Person with whom the Executive had material or regular dealings at any time during the Relevant Period, or in relation to whose dealings with the Company, the Parent and / or any other Associated Undertaking the Executive possessed a material amount of Confidential Information as at the Relevant Date;

 

"Restricted Products or Services" shall mean products or services of the same type as or similar to or competitive with any products or services supplied by the Company, the Parent and or any other Associated Undertaking at the Relevant Date, in the sale or supply of which the Executive shall have been involved to any material extent at any time during the Relevant Period;

 

“Relevant Date” means the Termination Date (howsoever arising);

 

“Relevant Period” means the 12 months prior to, and including, the Relevant Date.

 

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17.2The Executive acknowledges:

 

§that the Group is in a unique and highly specialised business, which is international in scope with a limited number of competitors;

 

§that the Group possess a valuable body of Confidential Information and that the Executive’s knowledge of Confidential Information directly benefits him by enabling him to perform his duties;

 

§that the protection of Confidential Information, customer connections, supplier connections, goodwill, and the stability of the workforce of the Company, the Parent and / or any other Associated Undertakings are business interests requiring protection; and

 

§that the disclosure of any Confidential Information to any actual or potential competitor of the Company, the Parent and / or any other Associated Undertaking would place the Company and / or it's relevant Associated Undertaking(s) at a serious competitive disadvantage and would cause immeasurable (financial and other) damage to the Relevant Business.

 

17.3Non-Compete Restriction

 

17.3.1The Executive agrees with the Company, under article 2125 of the Italian Civil Code, that to protect the Company’s legitimate business interests (and / or those of the Parent and / or any other relevant Associated Undertaking) including those set out at clause 17.2, during the Employment and for a period of 12 months after the Relevant Date, the Executive shall not within the Restricted Area, without the prior written consent of the Company, directly or indirectly in any capacity, whether as a self-employed person or as an employee, even on an occasional basis or without remuneration, as a partner, quota/shareholder, director, employee, assistant, director or agent, independently of his duties under his new business relationship either on his own behalf or in conjunction with or on behalf of any other Person, be engaged, concerned or interested in the Relevant Business, save that he may hold for investment:

 

(a)up to 3% of any class of securities quoted or dealt in on a recognised investment exchange; and

 

(b)up to 10% of any class of securities not so quoted or dealt.

 

17.3.2Considering the current technological resources (including, but not limited to, email and video conferencing) allowing a dissociation between the place in which the activity may be carried out and the place in which it may be used and, in any event, take effect, the restriction referred to above shall be deemed to relate to both such places, and shall therefore be binding not just with regard to the place in which the activity is carried out, in any form, but also the place in which such activity is intended to take direct effect, permanently and regularly, irrespective of the physical presence of the Executive in that place.

 

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17.3.3In consideration of the obligations set out under clause 17.3.1 above, the Company will pay the Executive a gross amount equal to 55% of the last annual total compensation that will be applicable at the date of termination of the Employment. It is understood that the total compensation for the purposes of calculating the non-compete consideration under this clause 17.3.3 will exclusively include: (i) the base salary; (ii) the average amount of the annual bonuses the Executive received during the three year period preceding the termination of the Employment, it being understood that any benefits received under the LTIP are expressly excluded from the calculation and (iii) the value of any assigned benefits, as indicated in the Executive’s payslip. This amount will be paid by the Company to the Executive after the termination of the Employment, during the period of the non-compete covenant, in quarterly consecutive equal instalments with any of these instalments due on the last day of each quarter, on the condition that the Executive complies with the non-compete obligations.

 

17.3.4In order to allow the Company to ensure strict compliance with the non-compete covenant, the Executive undertakes to notify the Company immediately by registered letter of the name of the company, body or organisation, or the employer for which he intends to carry out his work, collaboration or activity or of which he intends to become quota/shareholder and/or partner during the period of the non-compete covenant.

 

17.3.5In the case of failure or partial failure to comply with this non-compete covenant, the Executive will be obliged to pay back the money received from the Company as compensation for the non-compete under clause 17.3.2, and he will be obliged to pay as a penalty an additional sum equal to double the last annual gross salary, calculated according to article 2121 of the Italian Civil Code, with the right of the Company to obtain compensation for any further damages and to seek for any further legal remedy.

 

17.4Non-Solicitation / Non-Deal Restrictions

 

The Executive agrees with the Company that to protect the Company’s legitimate business interests (and / or those of the Parent and / or any other relevant Associated Undertaking) including those set out at clause 17.2, during the Employment and for a period of 12 months after the Relevant Date, the Executive shall not within the Restricted Area, without the prior written consent of the Company, directly or indirectly in any capacity either on his own behalf or in conjunction with or on behalf of any other Person:

 

17.4.1accept orders for or supply or cause orders to be accepted for or cause to be supplied Restricted Products or Services to any Restricted Person who:

 

(a)was provided with products or services by the Company, the Parent or any other Associated Undertaking at any time during the Relevant Period; or

 

(b)who was negotiating with the Company, the Parent or any other Associated Undertaking in relation to orders for or the supply of products or services from the Company, the Parent or any other Associated Undertaking at any time during the Relevant Period.

 

17.4.2solicit, canvass or approach or endeavour to solicit, canvass or approach or cause to be solicited, canvassed or approached any Restricted Person who:

 

(a)was provided with products or services by the Company, the Parent and / or any other Associated Undertaking at any time during the Relevant Period; or

 

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(b)was negotiating with the Company, the Parent and / or any Associated Undertaking in relation to orders for or the supply of products or services from the Company, the Parent and / or any other Associated Undertaking at any time during the Relevant Period,

 

for the purpose of offering to that Person Restricted Products or Services.

 

17.4.3interfere or seek to interfere or take steps as may interfere with the supplies (or the prospective supplies) to the Company, the Parent and / or any other Associated Undertaking (or the terms relating to such supplies) from any Restricted Person who:

 

(a)supplied components, materials, products or services to the Company, the Parent and / or any Associated Undertaking at any time during the Relevant Period;

 

(b)was negotiating with the Company, the Parent and / or any Associated Undertaking in relation to the supply of components, materials, products or services to the Company, the Parent, and / or any Associated Undertaking at any time during the Relevant Period.

 

17.4.4solicit or entice away or endeavour to solicit or entice away or cause to be solicited or enticed away from the Company, the Parent and / or any other Associated Undertaking any Person with whom the Executive worked with, or had managerial responsibility for, at any time during Relevant Period (or in relation to whom, as at the Relevant Date, the Executive possessed a material amount of Confidential Information) and:

 

(a)who was, at the Relevant Date, a Key Employee; and

 

(b)whose departure from the Company, the Parent and / or any other Associated Undertaking would have a material adverse effect on the business of such undertaking.

 

17.5The Executive agrees that he will not, after the Termination Date, whether directly or indirectly, use in connection with any business, any name that includes the name of the Company, the Parent and / or any other Associated Undertaking, or any colourable imitation of such names, and that he shall not represent himself or permit himself to be held out as being in any way connected with or interested in the business of the Company, the Parent and / or any other Associated Undertaking and that he shall take such steps as are necessary to comply with this obligation (including, but not limited to, by amending his social media profile) provided that such steps are not inconsistent with the Executive’s on-going obligations under this Agreement.

 

17.6The Executive agrees that if, during the continuance in force of the restrictions set out in this clause 15, he receives an offer of employment from any Person, he will immediately provide that Person with a complete and accurate copy of the restrictions set out herein.

 

17.7The Executive acknowledges and confirms that the restrictions set out in this clause are reasonable and go no further than is reasonably necessary to protect the legitimate business interests of the Company, the Parent and / or any other Associated Undertakings (including, but not limited to, those interests acknowledged by the Executive in clause 17.2 of this Agreement).

 

17.8Nothing contained in this clause 17 shall act to prevent the Executive from using generic skills learnt while employed by the Company, the Parent and / or any other Associated Undertaking in any business or activity which is not in competition with the Company.

 

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17.9Each of the restrictions set out in this clause 17 is separate and severable and in the event of any such restriction (including the defined expressions) being determined as being unenforceable in whole or in part for any reason such unenforceability shall not affect the enforceability of the remaining restrictions or, in the case of part of a restriction being unenforceable, the remainder of that restriction.

 

17.10In the case of failure or partial failure to comply with the obligations under clause 17.4, the Executive will be obliged to pay to the Company, as a penalty, a sum equal to the last annual gross salary, calculated according to article 2121 of the Italian Civil Code, with the right of the Company to obtain compensation for any further damages and to seek for any further legal remedy.

 

18Use of Intellectual Property

 

18.1Applicability

 

"Works" means all Intellectual Property Rights (including any extensions and renewals thereof and including the right to sue for damages and other remedies in respect of any past infringements) which arise as a result of any creation, invention or discovery made by the Executive whether alone or with any other person at any time during either (a) the course of his employment with the Company; or (b) outside the course of his employment if the Intellectual Property Rights relate directly or indirectly to the business of the Group or any Associated Undertaking or which may, in the sole opinion of the Company, be capable of being used or adapted for by any Group Company.

 

18.2Property of the Company

 

18.2.1The Executive hereby agrees and acknowledges that (i) the object of this Agreement expressly includes the performance of creative and inventive activities on his part and also that (ii) all Works, save for his moral rights, shall automatically belong to the Company to the fullest extent permitted by law. The consideration for his creative and/or inventive activities is expressly included in the annual base salary.

 

18.2.2To the extent that any Intellectual Property Rights in any Works do not automatically vest in the Company (either at law or by virtue of this Agreement) the Executive hereby assigns to the Company (or, at the direction of the Company, to an Associated Undertaking) as a present and future assignment, all Intellectual Property Rights throughout the world for the maximum duration of such rights.

 

18.2.3To the extent that any Intellectual Property Rights are incapable of being assigned to the Company (or an Associated Undertaking) under applicable law, then the Executive hereby grants to the Company (or an Associated Undertaking) an exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide licence to use such Intellectual Property Rights to the fullest extent permitted by law (including the right to sub-license and to assign all of these rights).

 

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18.3Undertakings by Executive

 

The Executive hereby:

 

18.3.1Undertakes to disclose to the Company in writing full details of all Works upon the creation, invention or discovery of the same, and promptly whenever requested by the Company and in any event upon the termination of the Employment deliver up to the Company all correspondence and other documents, papers and records and all copies thereof in his possession, custody or power relating to any Intellectual Property Rights;

 

18.3.2undertakes, at the expense of the Company, to execute all such documents, make such applications, give such assistance and do such acts and things as may in the opinion of the Board be necessary or desirable in order to give effect to this clause; and

 

18.3.3irrevocably appoints the Company or its nominee as the attorney of the Executive to execute all documents as the Company may consider necessary to give effect to this clause.

 

19Data Protection

 

19.1The Company holds and processes the Executive's personal data for legal, personnel, administrative and management purposes in accordance with applicable laws and as outlined in all applicable Company Data Protection Policies and the Employee Privacy Statement, as may be in force from time to time.

 

19.2The Executive agrees to comply with the Applicable Data Protection Laws and agrees to review and abide by the terms of the Company’s and Group's policies on data protection, a copy of which is set out in the Company Handbook.

 

19.3The Executive acknowledges that the Company may monitor and/or record his use of office equipment, to the extent permitted by law, including but not limited to email and Internet, and mobile telephones, in order to ascertain compliance with the Company's and Group's policies, detect unauthorised use or misconduct, and otherwise ensure the effective operation of the systems.

 

20Notices

 

20.1Any notice or other communication whether required or permitted to be given in accordance with this clause 20 shall be given in writing and shall be deemed to have been duly given if delivered by hand, sent by email, if sent by registered delivery post correctly addressed to the relevant party's address as specified in this contract or at such other address as such party may designate from time to time in writing in accordance with this clause 20 and marked for the attention of the company's secretary in the case of notices addressed to the company.

 

20.2The Executive undertakes to provide the Company, upon request, with an email address for service of notices pursuant to this 20.

 

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21Miscellaneous

 

21.1Variation

 

No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties hereto.

 

21.2Counterparts

 

This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts each of which when executed and delivered shall constitute an original and all such counterparts together constituting one and the same instrument.

 

21.3Applicable National Collective Bargaining Agreement

 

In relation to any issues not expressly provided for in this Agreement, provisions of law and of the CBA from time to time in force shall apply.

 

21.4Whole Agreement

 

Each of the Executive and the Company (on behalf of itself and its Associated Undertakings) confirms that this Agreement contains the whole agreement between the parties hereto relating to the matters provided for in this Agreement and supersedes all previous agreements (including any previously executed employment contracts relating to the Executive’s employment with any Group Company) between such parties in respect of such matters and each of the parties to this Agreement acknowledges that in agreeing to enter into this Agreement it has not relied on any representations or warranties except for those contained in this Agreement.

 

21.5Notice on employment conditions

 

Appendix B provides the information regarding certain essential aspects of the employment relationship as required by Article 1 of Legislative Decree No. 152/1997, as amended by Article 4 of Legislative Decree No. 104/2022.

 

22Governing Law

 

This Agreement shall be governed by and construed in accordance with the laws of Italy and the courts of Italy shall have exclusive jurisdiction to deal with all disputes arising from or touching upon this Agreement.

 

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-Appendix A: duties

 

-Appendix B: Notice on employment conditions

 

This Agreement has been entered into on the date stated at the beginning of it.

 

I, the undersigned Mr Saverio Mayer, hereby acknowledge that I have read, understood and accepted the above contractual conditions.

 

Signed by /s/ Saverio Mayer  
SAVERIO MAYER    
     
Signed by /s/ Gianlucia Castellini  

 

duly authorised for and on behalf of

 

Smurfit Kappa Italia S.p.A.

 

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Smurfit Westrock plc
Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.
Tel: +353 (0)1 202 7000, Fax: +353 (0)1 269 4481
smurfitwestrock.com

 

APPENDIX A: DUTIES

 

·Developing and implementing the strategic plan and vision of the Group, in particular for the European, MEA and APAC regions;

 

·Leading the executive team in the European, MEA and APAC regions and providing input to other key stakeholders in the region;

 

·Ensuring the company's financial sustainability and growth, including managing cash flow in the European, MEA and APAC regions;

 

·Building and maintaining strong relationships with clients/customers, investors, and other stakeholders in particular in European, MEA and APAC regions

 

·Overseeing day-to-day operations and making decisions that drive growth and success of the Parent in European, MEA and APAC regions;

 

·Representing the Parent to the public and media, where required;

 

·Ensuring compliance with regulatory and legal requirements, including corporate governance in European, MEA and APAC regions;

 

·Fostering a culture of collaboration, innovation, and excellence within the Group;

 

·Providing leadership and management skills to create a high-quality work environment;

 

·Motivating and developing the management team and high-performing employees;

 

·Leading and executing mergers, acquisitions, and strategic partnerships to further the company's strategic direction;

 

·Providing ethical leadership and upholding integrity, ethics, and corporate social responsibility.

 

Smurfit Westrock public limited company. Registered in Ireland No.607515. Registered office: Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.

 

Directors: Irial Finan Chair, Anthony Smurfit President & Group Chief Executive Officer, Ken Bowles Executive Vice President & Group Chief Financial Officer, Kaisa Hietala Senior Independent Director (Finland), Colleen F Arnold (USA), Tim J Bernlohr (USA), Terrell K Crews (USA), Carol Fairweather (UK), Suzan F Harrison (USA), Mary Lynn Ferguson-McHugh (USA), Lourdes Melgar (Mexico), Jørgen Buhl Rasmussen (Denmark), Dmitri L Stockton (USA), Alan D Wilson (USA).

 

Secretary: Gillian Carson-Callan.

 

 

 

 

APPENDIX B: NOTICE PURSUANT TO ARTICLE 1 OF LEGISLATIVE DECREE NO. 152/1997, AS AMENDED BY ARTICLE 4 OF LEGISLATIVE DECREE NO. 104/2022

 

(a)Identity of the parties

 

Please refer to the Agreement (page 1).

 

(b)Place of work

 

Please refer to the Agreement (Clause 6.1).

 

(c)Employer’s registered place of business or domicile

 

Please refer to the Agreement (page 1).

 

(d)Employment category, level and title (or, as an alternative, a brief description of the work)

 

Please refer to the Agreement (Clause 3).

 

(e)Date of commencement of the employment relationship

 

Please refer to the Agreement (Clause 2.1.3).

 

(f)Type of employment (and, in case of a fixed-term employment relationship, the expected duration thereof)

 

Please refer to the Agreement (Clause 15.1).

 

(g)Duration of the probationary period, if any

 

N/A

 

(h)Right to receive trainings from the employer, if any

 

Mandatory periodic training in health and safety at work matters. Additional training courses may be scheduled and will be communicated from time to time.

 

(i)Holidays and other paid leaves

 

i.Holidays: 35 days per each working year. Please refer to the CBA for the detailed discipline.

 

ii.Marriage leave: 15 calendar days Executives not on trial period in the event of marriage or civil union.

 

iii.Maternity leave (also for adopted or foster children): 5 months.

 

iv.Alternative paternity leave (also for adopted or foster children): executives-fathers, in case of death, serious infirmity, abandonment or non-recognition of the mother or custody of the child exclusively to the father. Duration is 5 months (or the shorter duration not used by the mother).

 

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v.Mandatory paternity leave: executives-fathers (also of adopted or foster children) during the period from 2 months before the presumed date of birth until 5 months after the birth or entry into the family. Duration is 10 days (not divisible by hours, also usable on a non-continuous basis); 20 days in case of multiple births.

 

vi.Parental leave: for executives-parents within the first 12 years of life of the child (or from entry into the family in case of adoption or foster care). The duration of the leave is splitted between the parents for a total maximum of 10 months (increasable to 11 months) of leave. Specifically, if both parents are present (again within the overall maximum limit of 11 months):

 

·the executive mother takes a maximum of 6 months of leave (after maternity leave has elapsed);

 

·the executive father takes a maximum of 7 months of leave.

 

If only one parent is present (i.e., due to death, serious infirmity, non-recognition or abandonment of the other parent or in case of sole custody to only one of the two parents): maximum 11 months.

 

The duration can be extended up to a maximum of 3 years for Executives who are parents of disabled persons up to 12 years of age.

 

l)              Illness or injury: the Executive is entitled to abstain from work for the duration of the illness/injury event with the right to maintain its job position (only for executives not on trial period):

 

·Up to 12 months in the case of absence due to illness/ non-work-related accident events (extendable for an additional 6 months);

 

·upon ascertained recovery or until permanent total or partial disability is established, in the case of absence due to accident at work.

 

Please refer to the CBA for the detailed discipline.

 

(m)          Procedure, formal requirements and period of notice to be observed where the employment relationship is terminated

 

i.Notice of dismissal: in all cases of dismissal not on trial period and not due to just cause, the executive is entitled to receive a notice of termination (or payment of the relevant indemnity in lieu thereof) whose duration variates according to company seniority, as described in the table below. Please refer to the CBA for the detailed discipline.

 

Seniority Notice
Up to 6 years 6 months
From 6 to 10 years 8 months
From 10 to 15 years 10 months
Over 15 years 12 months

 

ii.Notice of resignations: due in all cases of resignation not during the trial period and not for just cause. Duration: 1/3 of the notice of dismissal. If notice is not given, the Executive is required to pay the relevant indemnity in lieu of notice which may be withheld from the net severance pay.

 

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iii.Form and procedure of resignations: telematic procedure through the completion and transmission to the employer of the forms made available by the Ministry of Labor and Social Policies through the website www.lavoro.gov.it, possibly with the assistance of patronages (patronati), trade union organizations, labor consultants, territorial offices of the Labor Inspectorate or bilateral bodies and certification commissions (in this case, the resignation is revocable within 7 days of submission). Alternatively: formalization before a body referred to in Art. 2113, par. 4 of the Italian Civil Code. In the case of resignation of the Executive during the period of pregnancy or during the first 3 years of the child's life (or in the first 3 years of the entry into family of the adopted or foster child) or in the case of resignation submitted by the female Executive in the period between the day of the request for marriage banns as it follows the celebration and the expiration of one year from the celebration itself: resignation to be validated at the Territorial Labor Inspectorate competent for the territory.

 

(n)Compensation

 

Please refer to the Agreement (Clause 7).

 

(o) and (p)      Working time and overtime

 

Please refer to the Agreement (Clause 6.4). In particular, given regard to the nature of the working activities to be carried out and the responsibilities and management of the job assigned, the Executive shall not be subject to working time limits pursuant to Article 17, paragraph 5, letter a) of Legislative Decree 8 April 2003 no. 66.

 

(q)Applicable collective bargaining agreements

 

The CBA, as defined in the Agreement.

 

Please refer to the database available at Ministry of Labour and Social Policies website, where the most updated versions of the legal and contractual provisions applicable to the employment relationships are available at: https://www.lavoro.gov.it/temi-e-priorita/rapporti-di-lavoro-e-relazioni-industriali/focus-on/norme-contratti-collettivi/Pagine/default.aspx.

 

(r)Social security and insurance coverage

 

The Company is paying mandatory social security contributions to INPS (Istituto Nazionale Previdenza Sociale) and mandatory insurance premiums to INAIL (Istituto Nazionale per l’Assicurazione contro gli Infortuni sul Lavoro).

 

(s)Automated decision-making and/or monitoring systems, if any

 

The Company does not use any automated decision-making or monitoring system aimed at providing relevant information for the purpose of hiring, managing or terminating the employment relationship, assigning tasks or duties as well as information affecting the surveillance, the appraisal, the working performance and the fulfilment of the contractual obligations of employees. Should the Company use these systems in the future, it will comply with the relevant additional information requirements provided by the law.

 

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Exhibit 10.20

 

Smurfit Westrock plc
 Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.
Tel: +353 (0)1 202 7000, Fax: +353 (0)1 269 4481
smurfitwestrock.com

 

Offer Letter

 

June 27, 2024

 

Laurent Sellier
[ADDRESS]

 

Dear Laurent:

 

Reference is made to the Transaction Agreement, dated as of September 12, 2023 (the “Transaction Agreement”), pursuant to which, upon completion (the “Completion” and the date on which the Completion occurs, the “Completion Date”)) of the transactions contemplated thereby, Smurfit Kappa Group plc (“Smurfit Kappa”) and WestRock Company (“WestRock”) became wholly owned by Smurfit WestRock plc (the “Company”).

 

We are pleased to offer you a continued role with the Company as President and Chief Executive Officer, North America (including Mexico), reporting to the President & Group Chief Executive Officer. In this role, your principal place of employment will be the Company’s office in Georgia at 1000 Abernathy Road, NE Atlanta, Georgia, subject to reasonable business travel as required to fulfill your duties. Your direct employer will continue to be Smurfit Kappa Packaging, LLC (the “Employer”). The purpose of this letter is to describe the general terms and conditions of your employment with the Company.

 

COMPENSATION

 

Annual Base Salary: Your annual base salary will be $900,000, to be paid in accordance with the Employer’s applicable payroll practice in effect from time to time. Your annual base salary will be subject to periodic review by the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”).

 

Annual Cash Bonus: Your bonus opportunity for calendar year 2024 will be determined as follows:

 

·You will be eligible to receive a prorated annual bonus (the “Pre-Completion Prorated Bonus”) with respect to the portion of the 2024 fiscal year of Smurfit Kappa (ending December 31, 2024) (the “2024 Fiscal Year”) that has elapsed prior to the Completion Date. The Pre-Completion Prorated Bonus will be equal to the actual bonus that you would have been eligible to receive under the annual bonus programs in effect immediately prior to the Completion based on your annual bonus opportunity in effect as of such time and based on the actual level of achievement of the applicable performance goals as determined by the Remuneration Committee of the Board of Directors of Smurfit Kappa prior to the Completion, prorated based on the number of days elapsed during the 2024 Fiscal Year prior to the Completion Date. The Pre-Completion Prorated Bonus will be paid to you in cash in February 2025, subject to your continued employment through the last day of the 2024 Fiscal Year.

 

·You will also be eligible to receive a prorated annual bonus for the period from the Completion Date through December 31, 2024 (the “Post-Completion Prorated Bonus”). The Post-Completion Prorated Bonus will be determined using the target annual bonus opportunity as set forth in the following paragraph and the actual level of achievement of the applicable performance goals to be established by the Compensation Committee, prorated based on the number of days from the Completion Date through December 31, 2024 out of 366. The Post-Completion Prorated Bonus will be paid in cash in February 2025, subject to your continued employment through December 31, 2024.

 

Smurfit Westrock public limited company. Registered in Ireland No.607515. Registered office: Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland.

 

Directors: Irial Finan Chair, Anthony Smurfit President & Group Chief Executive Officer, Ken Bowles Executive Vice President & Group Chief Financial Officer, Kaisa Hietala Senior Independent Director (Finland), Colleen F Arnold (USA), Tim J Bernlohr (USA), Terrell K Crews (USA), Carol Fairweather (UK), Suzan F Harrison (USA), Mary Lynn Ferguson-McHugh (USA), Lourdes Melgar (Mexico), Jørgen Buhl Rasmussen (Denmark), Dmitri L Stockton (USA), Alan D Wilson (USA).

 

Secretary: Gillian Carson-Callan.

 

 

 

 

 

 

Starting with the Company’s fiscal year 2025, your target annual bonus opportunity will be 75% of your annual base salary. Your actual annual bonus payment, if any, will be determined based on the level of achievement of the applicable performance goals to be established annually by the Compensation Committee. Payment of your earned annual bonus (if any) is subject to your continued employment through the last day of the applicable fiscal year, except as otherwise provided by the terms of the Company’s annual bonus program as in effect from time to time.

 

Annual Equity Awards: You will be eligible to receive annual equity awards granted by the Company during your employment with the Employer. It is expected that your annual equity awards for the Company’s fiscal year 2025 will have a target aggregate grant date fair value of $2,250,000.

 

Any equity awards actually granted to you by the Company are subject to approval by the Compensation Committee. The form, terms and conditions of your annual equity awards will be determined by the Compensation Committee and set forth in the applicable award agreement.

 

BENEFITS

 

Health, Welfare, and Other Benefit Programs:     You will be eligible to participate in all health, welfare and other benefit programs (including car benefits) applicable to similarly situated executives of the Company employed by the Employer in accordance with their applicable terms and conditions as in effect from time to time.

 

Retirement/Pension Plan: During your employment with the Employer, you will be eligible to participate in the Company’s retirement and pension programs in effect for similarly situated executives from time to time.

 

SEVERANCE

 

You will be eligible to participate in the Company’s Executive Severance Plan, as in effect from time to time.

 

RESTRICTIVE COVENANTS

 

You agree to be bound by, and to comply in all respects with, the restrictive covenants set forth on Exhibit A.

 

ENTIRE AGREEMENT/EMPLOYMENT AT WILL

 

This offer letter contains the entire understanding between you and the Company and its subsidiaries (including, without limitation, Smurfit Kappa and the Employer) and supersedes any prior representations, in any form, that may have been made regarding your prospective employment at the Company or its subsidiaries (including, without limitation, Smurfit Kappa and the Employer) and may not be changed or modified in any way except in writing from an authorized representative of the Company. Nothing contained in this offer letter is intended or should be construed as a contract for employment, either express or implied, with the Company or its subsidiaries (including, without limitation, Smurfit Kappa and the Employer). Should you accept this offer of employment from the Company, you understand that your employment will be on an at-will basis and is not for any fixed period of time. This means that either you or the Company or the Employer can terminate the employment relationship at any time, with or without cause.

 

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MISCELLANEOUS

 

This offer letter shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to any choice of law or conflicting provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the laws of any jurisdiction other than the State of Georgia to be applied.

 

Employment with the Employer for purposes of this offer letter shall include employment with any subsidiary or affiliate of the Employer. The Company and the Employer reserve the right to withhold or cause to be withheld applicable taxes from any amounts paid pursuant to this offer letter to the extent required by applicable law. You shall be responsible for any and all tax liability imposed on amounts paid hereunder.

 

It is intended that the payments and benefits provided under this offer letter will be exempt from the application of, or comply with, the requirements of Section 409A of the U.S. Internal Revenue Code of 1986, as amended. This offer letter will be construed in a manner that effects such intent to the greatest extent possible.

 

CONDITIONS OF EMPLOYMENT

 

If the terms of this offer are acceptable, please let me know and indicate your agreement by signing, dating and returning this offer letter to Sharon Whitehead, at Sharon.Whitehead@smurfitkappa.com.

 

We have all appreciated our discussions with you and genuinely hope you will accept this offer to join the Company. We believe you will make important contributions and have a positive impact on the short- and long-term success of the Company. I look forward to working with you and am confident you will find the experience at the Company both personally and professionally rewarding.

 

[Signature Page Follows.]

 

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Sincerely,

 

Tony Smurfit

President and Group Chief Executive Officer

 

cc:          Sharon Whitehead, Group Chief Human Resources Officer

 

Accepted:

 

/s/ Laurent Sellier   July 5, 2024
SIGNATURE   Date Signed

 

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Exhibit A

 

1                      Definitions

 

1.1                   Capitalized terms used in this Exhibit A not otherwise defined in the offer letter to which this Exhibit A is attached shall have the following meanings:

 

“Board” means the Board of Directors of the Company;

 

“Confidential Information” means all and any information, whether or not recorded, of any Group Company which the Executive (or, where the context so requires, another person) has obtained by virtue of his employment or engagement and which the relevant Group Company regards as confidential or in respect of which the relevant Group Company is bound by an obligation of confidence to a third party, including:

 

(a)all and any information relating to business methods, corporate plans, future business strategy, management systems, finances, and maturing new business opportunities;

 

(b)all and any information relating to research or development projects or both;

 

(c)all and any information concerning the curriculum vitae, remuneration details, work-related experience, attributes and other personal information concerning those employed or engaged by any Group Company;

 

(d)all and any information relating to marketing or sales of any past present or future product or service of any Group Company including sales targets and statistics, market share and pricing statistics, marketing surveys and strategies, marketing research reports, sales techniques, price lists, mark-ups, discounts, rebates, tenders, advertising and promotional material, credit and payment policies and procedures, and lists and details of customers, prospective customers, suppliers and prospective suppliers including their identities, business requirements and contractual negotiations and arrangements with any Group Company;

 

(e)all and any trade secrets, secret formulae, processes, inventions, design, know-how, technical specification and other technical information in relation to the creation, production or supply of any past, present or future product or service of any Group Company, including all and any information relating to the working of any product, process, invention, improvement or development carried on or used by any Group Company or any associate of any Group Company and information concerning the intellectual property portfolio and strategy of any Group Company or of any associate of any Group Company;

 

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  but excluding any information which:

 

(i)is part of the Executive's own stock in trade;

 

(ii)is readily ascertainable to persons not connected with the Group without significant expenditure of labour, skill or money; or

 

(iii)which becomes available to the public generally other than by reason of a breach by the Executive of his obligations under any agreement with any Group Company;

 

“Employment” means the Executive’s employment with any member of the Group;

 

“Executive” means Laurent Sellier;

 

“Group” means the Company and all entities controlled by, controlling or under common control with the Company (all references to “Group Company” shall be construed accordingly);

 

“Intellectual Property Rights” means all intellectual property rights in any part of the world and includes patents, utility models, rights in inventions, registered and unregistered trade and service marks, rights in business and trade names and get-up, rights in domain names, registered designs, unregistered rights in designs, semiconductor topography rights, copyrights and related rights (including software copyright), rights in performances, database rights, rights in know-how and all other intellectual property rights (whether or not registered and including registrations and applications for registration) and all similar rights or forms of protection which may exist anywhere in the world;

 

“Key Employee” means the senior leadership team of the Group from time to time;

 

"Person” means any individual person, firm, company, partnership, unincorporated association, joint venture or other legal entity;

 

“Relevant Business” means the business or businesses from time to time carried on by any Group Company, limited to the activities with which the Executive was materially concerned or involved in the course of his employment during the Relevant Period, or in respect of which the Executive possessed a material amount of Confidential Information as at the Relevant Date;

 

“Relevant Date” means the date on which the Employment terminates irrespective of the cause or manner;

 

“Relevant Period” means the twelve months prior to, and including, the Relevant Date.

 

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“Restricted Area” means Ireland, the US, the UK, the Netherlands and any other country in which any Group Company carries on a material amount of Relevant Business or intends to carry on Relevant Business, where such intention is reasonably within the knowledge of the Executive, as at the Relevant Date;

 

“Restricted Person” means any Person with whom the Executive had material or regular dealings at any time during the Relevant Period, or in relation to whose dealings with any Group Company the Executive possessed a material amount of Confidential Information as at the Relevant Date;

 

"Restricted Products or Services" shall mean products or services of the same type as or similar to or competitive with any products or services supplied by any Group Company at the Relevant Date, in the sale or supply of which the Executive shall have been involved to any material extent at any time during the Relevant Period;

 

"Works" means all Intellectual Property Rights (including any extensions and renewals thereof and including the right to sue for damages and other remedies in respect of any past infringements) which arise as a result of any creation, invention or discovery made by the Executive whether alone or with any other person at any time during either (a) the course of his employment with any Group Company; or (b) outside the course of his employment if the Intellectual Property Rights relate directly or indirectly to the business of the Group or which may, in the sole opinion of the Company, be capable of being used or adapted for by any Group Company.

 

2                      Confidentiality

 

2.1                   Use of Confidential Information

 

2.1.1                The Executive acknowledges that, during the Employment, he will have access to Confidential Information and has therefore agreed to accept the restrictions in this clause. The Executive shall not during the continuance of the Employment or at any time thereafter except as authorised by the Board in the proper performance of his duties hereunder disclose or cause to be disclosed to any person or use for his own purposes or for any purposes other than those of the Group any Confidential Information which he may have received or obtained during his employment or work with any Group Company or information in respect of which any Group Company is bound by an obligation of confidence to a third party and he shall use his best endeavours to prevent the publication or disclosure of any such information.

 

2.1.2                 All notes, memoranda, documents, records and writing made, received or obtained by the Executive on any matters relating to the organisation, business, finance, customers, suppliers, dealings, transactions or affairs of any Group Company shall be treated as confidential and shall be and remain the property of the relevant Group Company and shall be delivered by the Executive to the relevant Group Company forthwith upon request.

 

2.1.3                The restrictions contained in this clause shall not apply to:

 

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(a)any disclosure authorised by the Board or required in the ordinary and proper course of the Employment or as required by the order of a court of competent jurisdiction or an appropriate regulatory authority; or

 

(b)any information which the Executive can demonstrate was known to the Executive prior to the commencement of the Employment or is in the public domain otherwise than as a result of a breach of this clause.

 

2.1.4                Notwithstanding anything to the contrary, nothing in this Exhibit A or the offer letter to which this Exhibit A is attached limits the Executive’s (a) ability to communicate with any government agency, legislative body or self-regulatory organization or otherwise participate in or fully cooperate with any investigation or proceeding that may be conducted by any government agency, legislative body or self-regulatory organization, including providing documents or other information or otherwise exercising any legally protected whistleblower rights, without notice to or approval from the Company, without risk of being held liable by the Company for financial penalties, or (b) right to receive an award for information provided to any government agency, legislative body or self-regulatory organization. Furthermore, notwithstanding anything to the contrary, pursuant to the Defend Trade Secrets Act of 2016, the Executive shall not be held criminally or civilly liable under any federal or state trade secret law in the United States for the disclosure of a trade secret that is made: (i) in confidence to a government official or attorney for the purpose of reporting or investigating a suspected violation of law, (ii) in a complaint or other document filed in a lawsuit or other proceeding, as long as such filing is made under seal, or (iii) to an attorney representing the Executive in a claim for retaliation for reporting suspected violations of law.

 

3                      Restrictive Covenants

 

3.1                   The Executive acknowledges:

 

§that the Group is in a unique and highly specialised business, which is international in scope with a limited number of competitors;

 

§that the Group possess a valuable body of Confidential Information and that the Executive’s knowledge of Confidential Information directly benefits him by enabling him to perform his duties;

 

§that the protection of Confidential Information, customer connections, supplier connections, goodwill, and the stability of the workforce of the Group are business interests requiring protection; and

 

§that the disclosure of any Confidential Information to any actual or potential competitor of any Group Company would place the Company and/or the relevant Group Company at a serious competitive disadvantage and would cause immeasurable (financial and other) damage to the Relevant Business.

 

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3.2                   Non-Compete Restriction

 

The Executive agrees with the Company that to protect the Group’s legitimate business interests including those set out at clause 3.1, during the Employment and for a period of twelve months after the Relevant Date, the Executive shall not within the Restricted Area, without the prior written consent of the Company, directly or indirectly in any capacity (limited to a role that is of the same, similar or greater seniority, status and remuneration as the Executive’s role with the Company, as determined on the basis of the prevailing industry norm for a role commensurate with any such role) either on his own behalf or in conjunction with or on behalf of any other Person, be engaged, concerned or interested in the Relevant Business or in any business wholly or partly in competition with the Relevant Business, save that he may hold for investment:

 

3.2.1                up to 3% of any class of securities quoted or dealt in on a recognised investment exchange; and

 

3.2.2                up to 10% of any class of securities not so quoted or dealt.

 

3.3                   Non-Solicitation / Non-Deal Restrictions

 

The Executive agrees with the Company that to protect the Group’s legitimate business interests including those set out at clause 3.1, during the Employment and for a period of twelve months after the Relevant Date, the Executive shall not within the Restricted Area, without the prior written consent of the Company, directly or indirectly in any capacity either on his own behalf or in conjunction with or on behalf of any other Person:

 

3.3.1                accept orders for or supply or cause orders to be accepted for or cause to be supplied Restricted Products or Services to any Restricted Person who:

 

(a)was provided with products or services by any Group Company at any time during the Relevant Period; or

 

(b)who was negotiating with any Group Company in relation to orders for or the supply of products or services from any Group Company at any time during the Relevant Period.

 

3.3.2                solicit, canvass or approach or endeavour to solicit, canvass or approach or cause to be solicited, canvassed or approached any Restricted Person who:

 

(a)was provided with products or services by any Group Company at any time during the Relevant Period; or

 

(b)was negotiating with any Group Company in relation to orders for or the supply of products or services from any Group Company at any time during the Relevant Period,

 

for the purpose of offering to that Person Restricted Products or Services.

 

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3.3.3                interfere or seek to interfere or take steps as may interfere with the supplies (or the prospective supplies) to any Group Company (or the terms relating to such supplies) from any Restricted Person who:

 

(a)supplied components, materials, products or services to any Group Company at any time during the Relevant Period;

 

(b)was negotiating with any Group Company in relation to the supply of components, materials, products or services to any Group Company at any time during the Relevant Period.

 

3.3.4                solicit or entice away or endeavour to solicit or entice away or cause to be solicited or enticed away from any Group Company any Person with whom the Executive worked with, or had managerial responsibility for, at any time during Relevant Period (or in relation to whom, as at the Relevant Date, the Executive possessed a material amount of Confidential Information) and:

 

(a)who was, at the Relevant Date, a Key Employee; and

 

(b)whose departure from any Group Company would have a material adverse effect on the business of such undertaking.

 

3.4                   The Executive agrees that he will not, after the Relevant Date, whether directly or indirectly, use in connection with any business, any name that includes the name of any Group Company, or any colourable imitation of such names, and that he shall not represent himself or permit himself to be held out as being in any way connected with or interested in the business of any Group Company and that he shall take such steps as are necessary to comply with this obligation (including, but not limited to, by amending his social media profile) provided that such steps are not inconsistent with any of the Executive’s on-going obligations to the Group.

 

3.5                   The Executive agrees that if, during the continuance in force of the restrictions set out in this clause 3, he receives an offer of employment from any Person, he will immediately provide that Person with a complete and accurate copy of the restrictions set out herein.

 

3.6                   The Executive acknowledges and confirms that the restrictions set out in this clause are reasonable and go no further than is reasonably necessary to protect the legitimate business interests of the Group (including, but not limited to, those interests acknowledged by the Executive in clause 3.1).

 

3.7                   Nothing contained in this clause 3 shall act to prevent the Executive from using generic skills learnt while employed by any Group Company in any business or activity which is not in competition with the Company.

 

3.8                   Each of the restrictions set out in this clause 3 is separate and severable and in the event of any such restriction (including the defined expressions) being determined as being unenforceable in whole or in part for any reason such unenforceability shall not affect the enforceability of the remaining restrictions or, in the case of part of a restriction being unenforceable, the remainder of that restriction.

 

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3.9                   The Executive acknowledges and confirms that he shall at the request (and cost) of the Company enter into a further agreement with the Company and/or any other Group Company whereby he shall accept restrictions corresponding to the restrictions set forth herein.

 

4                      Use of Intellectual Property

 

4.1                   Property of the Company

 

4.1.1The Executive hereby agrees and acknowledges that all Works shall automatically belong to the Company to the fullest extent permitted by law.

 

4.1.2To the extent that any Intellectual Property Rights in any Works do not automatically vest in the Company (either at law or by virtue of this Agreement) the Executive hereby assigns to the Company (or, at the direction of the Company, to a Group Company) as a present and future assignment, all Intellectual Property Rights throughout the world for the maximum duration of such rights.

 

4.1.3To the extent that any Intellectual Property Rights are incapable of being assigned to the Company (or a Group Company) under applicable law, then the Executive hereby grants to the Company (or a Group Company) an exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide licence to use such Intellectual Property Rights to the fullest extent permitted by law (including the right to sub-license and to assign all of these rights).

 

4.2                   Undertakings by Executive

 

The Executive hereby:

 

4.2.1Undertakes to disclose to the Company in writing full details of all Works upon the creation, invention or discovery of the same, and promptly whenever requested by the Company and in any event upon the termination of the Employment deliver up to the Company all correspondence and other documents, papers and records and all copies thereof in his possession, custody or power relating to any Intellectual Property Rights;

 

4.2.2irrevocably and unconditionally waives all moral rights granted by Chapter 7 of the Copyright and Related Rights Act 2000 (and all similar rights in other jurisdictions) that vest in the Executive at any time in connection with the Works and the Executive agrees not to initiate, support or maintain any action or claim to the effect that any treatment, exploitation or use of such work infringes such right;

 

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4.2.3undertakes, at the expense of the Company, to execute all such documents, make such applications, give such assistance and do such acts and things as may in the opinion of the Board be necessary or desirable in order to give effect to this clause; and

 

4.2.4irrevocably appoints the Company or its nominee as the attorney of the Executive to execute all documents as the Company may consider necessary to give effect to this clause.

 

5                      Miscellaneous

 

5.1                   Injunctive Relief

 

The Executive acknowledges that the Company would be irreparably injured by a violation of this Exhibit A and that it is impossible to measure in money the damages that will accrue to the Company by reason of a failure by the Executive to perform any of his obligations under this Exhibit A. Accordingly, if the Company institutes any action or proceeding to enforce any of the provisions of this Exhibit A, to the extent permitted by applicable law, the Executive hereby waives the claim or defense that the Company has an adequate remedy at law, and the Executive shall not urge in any such action or proceeding the defense that any such remedy exists at law. Furthermore, in addition to other remedies that may be available, the Company shall be entitled (without the necessity of showing economic loss or other actual damage) to specific performance and other injunctive relief, without the requirement to post bond, in any court of competent jurisdiction for any actual or threatened breach of any of the covenants set forth in this Exhibit A

 

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Exhibit 10.21

 

Smurfit Westrock plc 

Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland. 

Tel: +353 (0)1 202 7000, Fax: +353 (0)1 269 4481 

smurfitwestrock.com 

  

 

Offer Letter

 

June 27, 2024

 

Jairo Lorenzatto
[ADDRESS]

 

Dear Jairo:

 

Reference is made to the Transaction Agreement, dated as of September 12, 2023 (the “Transaction Agreement”), pursuant to which, upon completion (the “Completion” and the date on which the Completion occurs, the “Completion Date”)) of the transactions contemplated thereby, Smurfit Kappa Group plc (“Smurfit Kappa”) and WestRock Company (“WestRock”) became wholly owned by Smurfit WestRock plc (the “Company”).

 

We are pleased to offer you a continued role with the Company as President and Chief Executive Officer, LATAM, reporting to the President & Group Chief Executive Officer. In this role, your principal place of employment will be the Company’s office in Florida at 900 S. Pine Island Road, Suite 600, Florida, subject to reasonable business travel as required to fulfill your duties. Your direct employer will continue to be the WestRock subsidiary that employed you as of immediately prior to the Completion (the “Employer”). The purpose of this letter is to describe the general terms and conditions of your employment with the Company.

 

COMPENSATION

 

Annual Base Salary: Your annual base salary will be $500,000, to be paid in accordance with the Employer’s applicable payroll practice in effect from time to time. Your annual base salary will be subject to periodic review by the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”).

 

Annual Cash Bonus: Your bonus opportunity for calendar year 2024 will be determined as follows:

 

·You will be eligible to receive a prorated annual bonus (the “Pre-Completion Prorated Bonus”) with respect to the portion of the 2024 fiscal year of WestRock (ending September 30, 2024) (the “2024 Fiscal Year”) that has elapsed prior to the Completion Date. The Pre-Completion Prorated Bonus will be equal to the actual bonus that you would have been eligible to receive under the annual bonus programs in effect immediately prior to the Completion based on your annual bonus opportunity in effect as of such time and based on the actual level of achievement of the applicable performance goals as determined by the Compensation Committee of the Board of Directors of WestRock prior to the Completion, prorated based on the number of days elapsed during the 2024 Fiscal Year prior to the Completion Date. The Pre-Completion Prorated Bonus will be paid to you in cash in November 2024 consistent with WestRock’s past practice, subject to your continued employment through the last day of the 2024 Fiscal Year.

 

·You will also be eligible to receive a prorated annual bonus for the period from the Completion Date through December 31, 2024 (the “Post-Completion Prorated Bonus”). The Post-Completion Prorated Bonus will be determined using the target annual bonus opportunity as set forth in the

 

·following paragraph and the actual level of achievement of the applicable performance goals to be established by the Compensation Committee, prorated based on the number of days from the Completion Date through December 31, 2024 out of 366. The Post-Completion Prorated Bonus will be paid in cash in February 2025, subject to your continued employment through December 31, 2024.

 

Smurfit Westrock public limited company. Registered in Ireland No.607515. Registered office: Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland. 

Directors: Irial Finan Chair, Anthony Smurfit President & Group Chief Executive Officer, Ken Bowles Executive Vice President & Group Chief Financial Officer, Kaisa Hietala Senior Independent Director (Finland), Colleen F Arnold (USA), Tim J Bernlohr (USA), Terrell K Crews (USA), Carol Fairweather (UK), Suzan F Harrison (USA), Mary Lynn Ferguson-McHugh (USA), Lourdes Melgar (Mexico), Jørgen Buhl Rasmussen (Denmark), Dmitri L Stockton (USA), Alan D Wilson (USA). 

Secretary: Gillian Carson-Callan.

  

 

 

 

 

 

Starting with the Company’s fiscal year 2025, your target annual bonus opportunity will be 75% of your annual base salary. Your actual annual bonus payment, if any, will be determined based on the level of achievement of the applicable performance goals to be established annually by the Compensation Committee. Payment of your earned annual bonus (if any) is subject to your continued employment through the last day of the applicable fiscal year, except as otherwise provided by the terms of the Company’s annual bonus program as in effect from time to time.

 

Annual Equity Awards: You will be eligible to receive annual equity awards granted by the Company during your employment with the Employer. It is expected that your annual equity awards for the Company’s fiscal year 2025 will have a target aggregate grant date fair value of $800,000.

 

Any equity awards actually granted to you by the Company are subject to approval by the Compensation Committee. The form, terms and conditions of your annual equity awards will be determined by the Compensation Committee and set forth in the applicable award agreement.

 

BENEFITS

 

Health, Welfare, and Other Benefit Programs: You will be eligible to participate in all health, welfare and other benefit programs (including car benefits) applicable to similarly situated executives of the Company employed by the Employer in accordance with their applicable terms and conditions as in effect from time to time. You will continue to be eligible for your current health, welfare and executive benefits (including executive physical and financial and tax planning benefits) and you will continue to be eligible to participate in the WestRock Deferred Compensation Plan, in each case through calendar year 2024 and as applicable.

 

Retirement/Pension Plan: During your employment with the Employer, you will be eligible to participate in the Company’s retirement and pension programs in effect for similarly situated executives from time to time.

 

WESTROCK CHANGE IN CONTROL AGREEMENT

 

Your Change in Control Severance Agreement with the Employer effective January 1, 2022 (the “CIC Agreement”) will remain in effect in accordance with its terms following the Completion Date, except that the CIC Agreement shall be modified effective as of the Completion Date as described below. Capitalized terms used in this section and not otherwise defined in this letter will have the meanings given to such terms in the CIC Agreement.

 

1.The Change in Control Period for purposes of the CIC Agreement is the period commencing on the Completion Date and ending on the second anniversary of the Completion Date.

 

2.The Company hereby acknowledges that you will have Good Reason effective as of the Completion Date and agrees that the period during which you may provide notice of your resignation for Good Reason shall be extended to the last day of the Change in Control Period. If you deliver written notice of resignation to the Company during the Change in Control Period and at least sixty (60) days prior to your anticipated termination date and Cause does not exist, then your resignation will be treated as a Qualifying Termination for purposes of the CIC Agreement.

 

smurfitwestrock.comPage 2 of 5

 

 

 

 

 

Your termination of employment by the Employer without Cause at any time during the Change in Control Period will continue to constitute a Qualifying Termination. In addition, the termination of your employment with the Employer during the Change in Control Period due to your death, or due to you becoming qualified to receive long-term disability benefits under the applicable long-term disability plan, will constitute a Qualifying Termination.

 

For clarity, your termination of employment with the Employer in any other circumstances not described above (including, without limitation, your resignation without providing at least sixty (60)) days prior written notice) shall not be treated as a Qualifying Termination.

 

3.If you experience a Qualifying Termination during the Change in Control Period, you will receive the payments and benefits provided by the CIC Agreement, paid or provided at the times specified therein, and calculated assuming that your Qualifying Termination occurred on the Completion Date (based on your annual base salary and Bonus Amount in effect at such time). For clarity, the accelerated equity award vesting under the CIC Agreement will apply only to your WestRock equity awards granted prior to the Completion that are assumed and converted into Company equity awards effective as of the Completion in accordance with the terms of the Transaction Agreement and in no event will you be entitled to receive any accelerated vesting of any new equity awards granted to you by the Company after the Completion Date.

 

4.If you do not experience a Qualifying Termination during the Change in Control Period, then the CIC Agreement will expire on the last day of the Change in Control Period and will be of no further force or effect.

 

SEVERANCE

 

For so long as the CIC Agreement remains in effect, you will not be eligible for any other severance benefits (except that, for clarity, you will remain eligible for benefits under the WestRock Executive Severance Plan to the extent those benefits are incorporated into your benefits under the CIC Agreement). If the CIC Agreement expires without you becoming entitled to receive severance benefits under the CIC Agreement and if you remain employed by Employer thereafter, you will become eligible to participate in the Company’s Executive Severance Plan, as in effect from time to time.

 

RESTRICTIVE COVENANTS

 

Your Restrictive Covenant Agreement with the Employer effective as of February 5, 2021 (the “Restrictive Covenant Agreement”) shall remain in effect in accordance with its terms following the Completion Date, provided that references to the “Company” thereunder shall be deemed to include the Company (as defined in this letter) and its affiliates.

 

ENTIRE AGREEMENT/EMPLOYMENT AT WILL

 

This offer letter contains the entire understanding between you and the Company and its subsidiaries (including, without limitation, WestRock and the Employer) and supersedes any prior representations, in any form, that may have been made regarding your prospective employment at the Company or its subsidiaries (including, without limitation, WestRock and the Employer) and may not be changed or modified in any way except in writing from an authorized representative of the Company. Nothing contained in this offer letter is intended or should be construed as a contract for employment, either express or implied, with the Company or its subsidiaries (including, without limitation, WestRock and the Employer). Should you accept this offer of employment from the Company, you understand that your employment will be on an at-will basis and is not for any fixed period of time. This means that either you or the Company or the Employer can terminate the employment relationship at any time, with or without cause

 

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MISCELLANEOUS

 

This offer letter shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to any choice of law or conflicting provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the laws of any jurisdiction other than the State of Georgia to be applied.

 

Employment with the Employer for purposes of this offer letter shall include employment with any subsidiary or affiliate of the Employer. The Company and the Employer reserve the right to withhold or cause to be withheld applicable taxes from any amounts paid pursuant to this offer letter to the extent required by applicable law. You shall be responsible for any and all tax liability imposed on amounts paid hereunder.

 

It is intended that the payments and benefits provided under this offer letter will be exempt from the application of, or comply with, the requirements of Section 409A of the U.S. Internal Revenue Code of 1986, as amended. This offer letter will be construed in a manner that effects such intent to the greatest extent possible.

 

CONDITIONS OF EMPLOYMENT

 

If the terms of this offer are acceptable, please let me know and indicate your agreement by signing, dating and returning this offer letter to Sharon Whitehead, at Sharon.Whitehead@smurfitkappa.com.

 

We have all appreciated our discussions with you and genuinely hope you will accept this offer to join the Company. We believe you will make important contributions and have a positive impact on the short- and long-term success of the Company. I look forward to working with you and am confident you will find the experience at the Company both personally and professionally rewarding.

 

[Signature Page Follows.]

 

smurfitwestrock.comPage 4 of 5

 

 

 

 

 

Sincerely,

  

Tony Smurfit
President and Group Chief Executive Officer

 

cc:       Sharon Whitehead, Group Chief Human Resources Officer

 

Accepted:

 

/s/ Jairo Lorenzatto   July 5, 2024
SIGNATURE   Date Signed

 

smurfitwestrock.comPage 5 of 5

 

Exhibit 99.1

 

5 July 2024

 

Smurfit Kappa Group plc
(“Smurfit Kappa”)

 

Effectiveness of the Scheme

 

Smurfit Kappa is pleased to announce that the scheme of arrangement in connection with the Combination of Smurfit Kappa and WestRock (the “Scheme”) will become effective at 5:00 p.m. (New York City time) today, 5 July 2024, following which Smurfit WestRock Shares will be allotted and issued to the Scheme Shareholders pursuant to the terms of the Scheme.

 

Next Steps

 

It is expected that, on Monday, 8 July 2024:

 

·the Smurfit Kappa Shares will be delisted from (i) the premium listing segment of the Official List of the FCA, and (ii) the Official List of Euronext Dublin, with effect from 8:00 a.m.;

 

·the Smurfit WestRock Shares will be admitted to the standard listing segment of the Official List of the FCA and commence trading on the LSE’s main market for listed securities, with effect from 8:00 a.m.; and

 

·the Smurfit WestRock Shares will trade on the New York Stock Exchange with effect from 9:30 a.m. (New York City time).

 

All dates and times above are based on current expectations and are subject to change. All times shown in this announcement are UK and Irish times, unless otherwise stated. Any changes to the above timeline will be notified by announcement through a Regulatory Information Service.

 

Further announcements will be made in due course, as appropriate.

 

Capitalised terms used in this announcement, unless otherwise defined, have the meanings assigned to them in the shareholder circular published by Smurfit Kappa on 14 May 2024.

 

Enquiries

 

For further information, please contact:

 

Ciarán Potts Gillian Carson-Callan
   
Smurfit Kappa Smurfit Kappa
T: +353 1 202 7000 T: +353 1 202 7000
E: ir@smurfitkappa.com E: ir@smurfitkappa.com

 

Additional Information about the Combination and Where to Find It

 

In connection with the Combination, Smurfit WestRock has filed with the US Securities and Exchange Commission (the “US SEC”) a registration statement on Form S-4 (Reg. No. 333-278185) (as amended and as may be further amended or supplemented from time to time, the “US Registration Statement”), which was declared effective by the US SEC on 26 April 2024, that includes a prospectus (the “US Prospectus”) relating to the offer and sale of the Smurfit WestRock Shares to WestRock Shareholders in connection with the Combination. In addition, on 26 April 2024, WestRock filed a separate definitive proxy statement with the US SEC with respect to the special meeting of WestRock Shareholders in connection with the Combination (as it may be amended or supplemented from time to time, the “US Proxy Statement”). WestRock commenced mailing of the US Proxy Statement to WestRock Shareholders on or about 1 May 2024. This announcement is not a substitute for any registration statement, prospectus, proxy statement or other document that Smurfit Kappa, WestRock and/or Smurfit WestRock have filed or may file with the US SEC or the FCA in connection with the Combination.

 

1

 

 

Before making any voting or investment decisions, investors, stockholders and shareholders of WestRock are urged to read carefully and in their entirety, the US Registration Statement, the US Prospectus, the US Proxy Statement, and any other relevant documents that are filed or will be filed with the US SEC, as well as any amendments or supplements to these documents, in connection with the Combination when they become available, because they contain or will contain important information about the Combination, the parties to the Combination, the risks associated with the Combination and related matters, including information about certain of the parties’ respective directors, executive officers and other employees who may be deemed to be participants in the solicitation of proxies in connection with the Combination and about their interests in the solicitation.

 

The US Registration Statement, the US Prospectus, the US Proxy Statement and other documents filed by Smurfit WestRock, Smurfit Kappa and WestRock with the US SEC are available free of charge at the US SEC’s website at www.sec.gov. In addition, investors and shareholders or stockholders are able to obtain free copies of the US Registration Statement, the US Proxy Statement and other documents filed with the US SEC by WestRock online at ir.westrock.com/ir-home/, upon written request delivered to 1000 Abernathy Road, Atlanta, Georgia 30328, United States, or by calling +1 (770) 448-2193, and are able to obtain free copies of the US Registration Statement, the US Prospectus, the US Proxy Statement and other documents filed with the US SEC by Smurfit WestRock or Smurfit Kappa online at www.smurfitkappa.com/investors, upon written request delivered to Beech Hill, Clonskeagh, Dublin 4, D04 N2R2, Ireland or by calling +353 1 202 7000. The information included on, or accessible through, Smurfit WestRock’s, Smurfit Kappa’s or WestRock’s websites is not incorporated by reference into this announcement.

 

Forward-Looking Statements

 

This announcement and other statements made or to be made by Smurfit WestRock, Smurfit Kappa and WestRock relating to the Combination, include certain “forward-looking statements” (including within the meaning of US federal securities laws) regarding the Combination and the listing of Smurfit WestRock, the rationale and expected benefits of the Combination (including, but not limited to, synergies), and any other statements regarding Smurfit WestRock’s, Smurfit Kappa’s and WestRock’s future expectations, beliefs, plans, objectives, results of operations, financial condition and cash flows, or future events or performance. Statements that are not historical facts, including statements about the beliefs and expectations of the management of each of Smurfit WestRock, Smurfit Kappa and WestRock, are forward-looking statements. Words such as “may”, “will”, “could”, “should”, “would”, “anticipate”, “intend”, “estimate”, “project”, “plan”, “believe”, “expect”, “target”, “prospects”, “potential”, “commit”, “forecasts”, “aims”, “considered”, “likely”, “estimate” and variations of these words and similar future or conditional expressions are intended to identify forward-looking statements but are not the exclusive means of identifying such statements. While Smurfit WestRock, Smurfit Kappa and WestRock believe these expectations, assumptions, estimates and projections are reasonable, such forward-looking statements are only predictions and involve known and unknown risks and uncertainties, many of which are beyond the control of Smurfit WestRock, Smurfit Kappa and WestRock. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend upon future circumstances that may or may not occur. Actual results may differ materially from the current expectations of Smurfit WestRock, Smurfit Kappa and WestRock depending upon a number of factors affecting their businesses and risks associated with the successful execution of the Combination and the integration and performance of their businesses following the Combination. Important factors that could cause actual results to differ materially from such plans, estimates or expectations include: developments related to pricing cycles and volumes; economic, competitive and market conditions generally, including macroeconomic uncertainty, customer inventory rebalancing, the impact of inflation and increases in energy, raw materials, shipping, labour and capital equipment costs; reduced supply of raw materials, energy and transportation, including from supply chain disruptions and labour shortages; intense competition; risks related to international sales and operations; failure to respond to changing customer preferences and to protect intellectual property; results and impacts of acquisitions by Smurfit Kappa, WestRock or, following Completion, Smurfit WestRock; the amount and timing of Smurfit Kappa’s, WestRock’s and, following Completion, Smurfit WestRock’s capital expenditures; evolving legal, regulatory and tax regimes; changes in economic, financial, political and regulatory conditions in Ireland, the United Kingdom, the United States and elsewhere, and other factors that contribute to uncertainty and volatility, natural and man-made disasters, civil unrest, pandemics (such as the COVID-19 pandemic), geopolitical uncertainty, and conditions that may result from legislative, regulatory, trade and policy changes associated with the current or subsequent Irish, US or UK administrations; the ability of Smurfit Kappa, WestRock or, following Completion, Smurfit WestRock, to successfully recover from a disaster or other business continuity problem due to a hurricane, flood, earthquake, terrorist attack, war, pandemic, security breach, cyber-attack, power loss, telecommunications failure or other natural or man-made event, including the ability to function remotely during long-term disruptions such as the COVID-19 pandemic; the impact of public health crises, such as pandemics (including the COVID-19 pandemic) and epidemics and any related company or governmental policies and actions to protect the health and safety of individuals or governmental policies or actions to maintain the functioning of national or global economies and markets; the potential impairment of assets and goodwill; the scope, costs, timing and impact of any restructuring of operations and corporate and tax structure; actions by third parties, including government agencies; Smurfit WestRock may be unable to achieve the synergies and value creation contemplated by the Combination; Smurfit WestRock’s availability of sufficient cash to distribute to Smurfit WestRock shareholders in line with current expectations; Smurfit WestRock may be unable to promptly and effectively integrate Smurfit Kappa’s and WestRock’s businesses; failure to successfully implement strategic transformation initiatives; each of Smurfit Kappa’s, WestRock’s and, following Completion, Smurfit WestRock’s management’s time and attention is diverted on issues related to the Combination; disruption from the Combination makes it more difficult to maintain business, contractual and operational relationships; significant levels of indebtedness; credit ratings may decline following the Combination; legal proceedings may be instituted against Smurfit WestRock, Smurfit Kappa or WestRock; Smurfit Kappa, WestRock and, following Completion, Smurfit WestRock, may be unable to retain or hire key personnel; the consummation of the Combination may have a negative effect on Smurfit Kappa’s or WestRock’s share prices, or on their operating results; the risk that disruptions from the Combination will harm Smurfit Kappa’s or WestRock’s business, including current plans and operations; certain restrictions during the pendency of the Combination that may impact Smurfit Kappa’s or WestRock’s ability to pursue certain business opportunities or strategic transactions; Smurfit WestRock’s ability to meet expectations regarding the accounting and tax treatments of the Combination, including the risk that the Internal Revenue Service may assert that Smurfit WestRock should be treated as a US corporation or be subject to certain unfavourable US federal income tax rules under Section 7874 of the Internal Revenue Code of 1986, as amended, as a result of the Combination; and other factors such as future market conditions, currency fluctuations, the behaviour of other market participants, the actions of regulators and other factors such as changes in the political, social and regulatory framework in which the Combined Group will operate or in economic or technological trends or conditions.

 

2

 

 

None of Smurfit WestRock, Smurfit Kappa, WestRock or any of their respective associates or directors, officers or advisers provides any representation, assurance or guarantee that the occurrence of the events expressed or implied in any such forward-looking statements will actually occur. You are cautioned not to place undue reliance on these forward-looking statements. Other than in accordance with its legal or regulatory obligations (including under the UK Prospectus Regulation, the UK Listing Rules, the Disclosure Guidance and Transparency Rules, the Prospectus Regulation Rules, the UK Market Abuse Regulation and other applicable regulations), Smurfit Kappa is under no obligation, and Smurfit Kappa expressly disclaims any intention or obligation, to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.

 

No Offer of Securities

 

This announcement does not constitute or form part of any offer or invitation to purchase, acquire, subscribe for, sell, dispose of or issue, or any solicitation of any offer to sell, dispose of, purchase, acquire or subscribe for, any security, including any Smurfit WestRock Shares expected to be issued to Smurfit Kappa Shareholders and WestRock Shareholders in connection with the Combination. In particular, the issuance of the Smurfit WestRock Shares in connection with the Combination to Smurfit Kappa Shareholders has not been, and is not expected to be, registered under the US Securities Act of 1933, as amended (the “US Securities Act”) or the securities laws of any other jurisdiction. The Smurfit WestRock Shares to be issued in connection with the Combination to Smurfit Kappa Shareholders will be issued pursuant to an exemption from the registration requirements provided by Section 3(a)(10) of the US Securities Act based on the approval of the Scheme to effect the Smurfit Kappa Share Exchange under the terms of the Transaction Agreement by the Irish High Court. Section 3(a)(10) of the US Securities Act exempts securities issued in exchange for one or more bona fide outstanding securities from the general requirement of registration where the fairness of the terms and conditions of the issuance and exchange of the securities have been approved by any court or authorised governmental entity, after a hearing upon the fairness of the terms and conditions of the exchange at which all persons to whom securities will be issued have the right to appear and to whom adequate notice of the hearing has been given. In determining whether it was appropriate to authorise the Scheme, the Irish High Court considered at the hearing of the motion to sanction the Scheme under Section 453 of the Irish Companies Act whether the terms and conditions of the Scheme were fair to Scheme shareholders. As the Irish High Court approved the Scheme on 2 July 2024, its approval constitutes the basis for the Smurfit WestRock Shares being issued without registration under the US Securities Act in reliance on the exemption from the registration requirements of the US Securities Act provided by Section 3(a)(10) of the US Securities Act.

 

3

 

Exhibit 99.2

 

www.smurfitwestrock.com  

 

Press Release

 

8 July 2024

 

Smurfit Westrock makes its debut in New York and London

 

Smurfit Westrock plc, a global leader in sustainable packaging, is pleased to announce its primary listing on the New York Stock Exchange (NYSE), under the ticker ‘SW,’ following the completion of the previously announced combination of Smurfit Kappa and WestRock on July 5, 2024.

 

The company also has a standard listing on the London Stock Exchange (LSE) under the ticker ‘SWR’.

 

Smurfit Westrock, operating in 40 countries and tapping into the expertise of over 100,000 people, has a unique and unrivalled ability to provide its customers with the most diverse, innovative and sustainable range of renewable and recyclable packaging solutions.

 

“Combining Smurfit Kappa and WestRock creates a world-leading sustainable packaging player, bringing together a tremendous depth of experience and expertise from both companies,” said Tony Smurfit, Smurfit Westrock Chief Executive Officer. “We believe that this combination has created the ‘go-to’ leader and partner of choice in sustainable packaging. I’m proud to be chosen to lead this great team of people.”

 

“The shareholders of both Smurfit Kappa and WestRock have overwhelmingly supported our combination. Smurfit Westrock has a unique geographic footprint and though our industry-leading applications, an unparalleled ability to provide value for our customers,” added Ken Bowles, Smurfit Westrock Chief Financial Officer.

 

Trading began on the LSE today at 8:00 a.m. BST, and will commence on the NYSE at 9:30 a.m. EDT, following the bell-ringing ceremony.

 

 

 

 

 

 

 

 

 

To learn more about Smurfit Westrock visit www.smurfitwestrock.com

 

 

 

Exhibit 99.3

 

8 July 2024

 

Smurfit Westrock plc

(“Smurfit Westrock”)

 

Completion of Listing

 

Further to its announcement on 14 May 2024 in connection with the FCA’s approval of and the publication of its prospectus (the “Prospectus”), Smurfit Westrock is pleased to announce that all of the issued Smurfit Westrock Shares, consisting of 519,323,681 ordinary shares with a nominal value of $0.001 each, have been admitted to the standard listing segment of the Official List of the FCA and to trading on the main market for listed securities of the LSE under the ticker “SWR”, effective from 8:00 a.m. (UK time) today. Further, it is expected that the Smurfit Westrock Shares will also be admitted to the New York Stock Exchange under the ticker “SW” with effect from 9:30 a.m. (New York City time) today.

 

Smurfit Westrock confirms that, with effect from the commencement of dealings, its total issued share capital as at today, 8 July 2024, consists of 519,323,681 ordinary shares with a nominal value of $0.001 each. The figure of 519,323,681 may be used by shareholders and others with notification obligations as the denominator for the calculations by which they will determine if they are required to notify their interest in, or a change to their interest in, Smurfit Westrock under the DTRs.

 

Capitalised terms used in this announcement, unless otherwise defined, have the meanings assigned to them in the Prospectus.

 

Enquiries

 

For further information, please contact:

 

Ciarán Potts

 

Smurfit Westrock

T: +353 1 202 7000

E: ir@smurfitwestrock.com

Gillian Carson-Callan

 

Smurfit Westrock

T: +353 1 202 7000

E: ir@smurfitwestrock.com

 

1

 

 

Forward-Looking Statements

 

This announcement and other statements made or to be made by Smurfit Westrock, Smurfit Kappa and WestRock relating to the Combination, include certain “forward-looking statements” (including within the meaning of US federal securities laws) regarding the Combination and the listing of Smurfit Westrock, the rationale and expected benefits of the Combination (including, but not limited to, synergies), and any other statements regarding Smurfit Westrock’s, Smurfit Kappa’s and WestRock’s future expectations, beliefs, plans, objectives, results of operations, financial condition and cash flows, or future events or performance. Statements that are not historical facts, including statements about the beliefs and expectations of the management of each of Smurfit Westrock, Smurfit Kappa and WestRock, are forward-looking statements. Words such as “may”, “will”, “could”, “should”, “would”, “anticipate”, “intend”, “estimate”, “project”, “plan”, “believe”, “expect”, “target”, “prospects”, “potential”, “commit”, “forecasts”, “aims”, “considered”, “likely”, “estimate” and variations of these words and similar future or conditional expressions are intended to identify forward-looking statements but are not the exclusive means of identifying such statements. While Smurfit Westrock, Smurfit Kappa and WestRock believe these expectations, assumptions, estimates and projections are reasonable, such forward-looking statements are only predictions and involve known and unknown risks and uncertainties, many of which are beyond the control of Smurfit Westrock, Smurfit Kappa and WestRock. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend upon future circumstances that may or may not occur. Actual results may differ materially from the current expectations of Smurfit Westrock, Smurfit Kappa and WestRock depending upon a number of factors affecting their businesses and risks associated with the successful execution of the Combination and the integration and performance of their businesses following the Combination. Important factors that could cause actual results to differ materially from such plans, estimates or expectations include: developments related to pricing cycles and volumes; economic, competitive and market conditions generally, including macroeconomic uncertainty, customer inventory rebalancing, the impact of inflation and increases in energy, raw materials, shipping, labour and capital equipment costs; reduced supply of raw materials, energy and transportation, including from supply chain disruptions and labour shortages; intense competition; risks related to international sales and operations; failure to respond to changing customer preferences and to protect intellectual property; results and impacts of acquisitions by Smurfit Kappa, WestRock or, following Completion, Smurfit Westrock; the amount and timing of Smurfit Kappa’s, WestRock’s and, following Completion, Smurfit Westrock’s capital expenditures; evolving legal, regulatory and tax regimes; changes in economic, financial, political and regulatory conditions in Ireland, the United Kingdom, the United States and elsewhere, and other factors that contribute to uncertainty and volatility, natural and man-made disasters, civil unrest, pandemics (such as the COVID-19 pandemic), geopolitical uncertainty, and conditions that may result from legislative, regulatory, trade and policy changes associated with the current or subsequent Irish, US or UK administrations; the ability of Smurfit Kappa, WestRock or, following Completion, Smurfit Westrock, to successfully recover from a disaster or other business continuity problem due to a hurricane, flood, earthquake, terrorist attack, war, pandemic, security breach, cyber-attack, power loss, telecommunications failure or other natural or man-made event, including the ability to function remotely during long-term disruptions such as the COVID-19 pandemic; the impact of public health crises, such as pandemics (including the COVID-19 pandemic) and epidemics and any related company or governmental policies and actions to protect the health and safety of individuals or governmental policies or actions to maintain the functioning of national or global economies and markets; the potential impairment of assets and goodwill; the scope, costs, timing and impact of any restructuring of operations and corporate and tax structure; actions by third parties, including government agencies; Smurfit Westrock may be unable to achieve the synergies and value creation contemplated by the Combination; Smurfit Westrock’s availability of sufficient cash to distribute to Smurfit Westrock shareholders in line with current expectations; Smurfit Westrock may be unable to promptly and effectively integrate Smurfit Kappa’s and WestRock’s businesses; failure to successfully implement strategic transformation initiatives; each of Smurfit Kappa’s, WestRock’s and, following Completion, Smurfit Westrock’s management’s time and attention is diverted on issues related to the Combination; disruption from the Combination makes it more difficult to maintain business, contractual and operational relationships; significant levels of indebtedness; credit ratings may decline following the Combination; legal proceedings may be instituted against Smurfit Westrock, Smurfit Kappa or WestRock; Smurfit Kappa, WestRock and, following Completion, Smurfit Westrock, may be unable to retain or hire key personnel; the consummation of the Combination may have a negative effect on Smurfit Kappa’s or WestRock’s share prices, or on their operating results; the risk that disruptions from the Combination will harm Smurfit Kappa’s or WestRock’s business, including current plans and operations; certain restrictions during the pendency of the Combination that may impact Smurfit Kappa’s or WestRock’s ability to pursue certain business opportunities or strategic transactions; Smurfit Westrock’s ability to meet expectations regarding the accounting and tax treatments of the Combination, including the risk that the Internal Revenue Service may assert that Smurfit Westrock should be treated as a US corporation or be subject to certain unfavourable US federal income tax rules under Section 7874 of the Internal Revenue Code of 1986, as amended, as a result of the Combination; and other factors such as future market conditions, currency fluctuations, the behaviour of other market participants, the actions of regulators and other factors such as changes in the political, social and regulatory framework in which the Combined Group will operate or in economic or technological trends or conditions.

 

None of Smurfit Westrock, Smurfit Kappa, WestRock or any of their respective associates or directors, officers or advisers provides any representation, assurance or guarantee that the occurrence of the events expressed or implied in any such forward-looking statements will actually occur. You are cautioned not to place undue reliance on these forward-looking statements. Other than in accordance with its legal or regulatory obligations (including under the UK Prospectus Regulation, the UK Listing Rules, the Disclosure Guidance and Transparency Rules, the Prospectus Regulation Rules, the UK Market Abuse Regulation and other applicable regulations), Smurfit Westrock is under no obligation, and Smurfit Westrock expressly disclaims any intention or obligation, to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.

 

2

 

 

No Offer of Securities

 

This announcement does not constitute or form part of any offer or invitation to purchase, acquire, subscribe for, sell, dispose of or issue, or any solicitation of any offer to sell, dispose of, purchase, acquire or subscribe for, any security, including any Smurfit Westrock Shares issued to Smurfit Kappa Shareholders and WestRock Shareholders in connection with the Combination. In particular, the issuance of the Smurfit Westrock Shares in connection with the Combination to Smurfit Kappa Shareholders has not been, and is not expected to be, registered under the US Securities Act of 1933, as amended (the “US Securities Act”) or the securities laws of any other jurisdiction. The Smurfit Westrock Shares issued in connection with the Combination to Smurfit Kappa Shareholders have been issued pursuant to an exemption from the registration requirements provided by Section 3(a)(10) of the US Securities Act based on the approval of the Scheme to effect the Smurfit Kappa Share Exchange under the terms of the Transaction Agreement by the Irish High Court. Section 3(a)(10) of the US Securities Act exempts securities issued in exchange for one or more bona fide outstanding securities from the general requirement of registration where the fairness of the terms and conditions of the issuance and exchange of the securities have been approved by any court or authorised governmental entity, after a hearing upon the fairness of the terms and conditions of the exchange at which all persons to whom securities will be issued have the right to appear and to whom adequate notice of the hearing has been given. In determining whether it was appropriate to authorise the Scheme, the Irish High Court considered at the hearing of the motion to sanction the Scheme under Section 453 of the Irish Companies Act whether the terms and conditions of the Scheme were fair to Scheme shareholders. As the Irish High Court approved the Scheme on 2 July 2024, its approval constituted the basis for the Smurfit Westrock Shares being issued without registration under the US Securities Act in reliance on the exemption from the registration requirements of the US Securities Act provided by Section 3(a)(10) of the US Securities Act.

 

3

 

Exhibit 99.4

 

8 July 2024

 

Smurfit Kappa Group plc
(“Smurfit Kappa”)

 

Delisting of Smurfit Kappa Shares and Completion of the Combination

 

Smurfit Kappa is pleased to announce that, further to its announcement on 5 July 2024 relating to the Scheme becoming effective:

 

·the Smurfit Kappa Shares have been delisted from (i) the premium listing segment of the Official List of the FCA, and (ii) the Official List of Euronext Dublin, with effect from 8:00 a.m. today;

 

·the Smurfit Westrock Shares have been admitted to the standard listing segment of the Official List of the FCA and have commenced trading on the LSE’s main market for listed securities, with effect from 8:00 a.m. today; and

 

·the Smurfit Westrock Shares will trade on the New York Stock Exchange with effect from 9:30 a.m. (New York City time) today.

 

All times shown in this announcement are UK and Irish times, unless otherwise stated.

 

Capitalised terms used in this announcement, unless otherwise defined, have the meanings assigned to them in the shareholder circular published by Smurfit Kappa on 14 May 2024.

 

Enquiries

 

For further information, please contact:

 

Ciarán Potts

 

Smurfit Westrock

T: +353 1 202 7000

E: ir@smurfitwestrock.com

Gillian Carson-Callan

 

Smurfit Westrock

T: +353 1 202 7000

E: ir@smurfitwestrock.com

 

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Forward-Looking Statements

 

This announcement and other statements made or to be made by Smurfit Westrock, Smurfit Kappa and WestRock relating to the Combination, include certain “forward-looking statements” (including within the meaning of US federal securities laws) regarding the Combination and the listing of Smurfit Westrock, the rationale and expected benefits of the Combination (including, but not limited to, synergies), and any other statements regarding Smurfit Westrock’s, Smurfit Kappa’s and WestRock’s future expectations, beliefs, plans, objectives, results of operations, financial condition and cash flows, or future events or performance. Statements that are not historical facts, including statements about the beliefs and expectations of the management of each of Smurfit Westrock, Smurfit Kappa and WestRock, are forward-looking statements. Words such as “may”, “will”, “could”, “should”, “would”, “anticipate”, “intend”, “estimate”, “project”, “plan”, “believe”, “expect”, “target”, “prospects”, “potential”, “commit”, “forecasts”, “aims”, “considered”, “likely”, “estimate” and variations of these words and similar future or conditional expressions are intended to identify forward-looking statements but are not the exclusive means of identifying such statements. While Smurfit Westrock, Smurfit Kappa and WestRock believe these expectations, assumptions, estimates and projections are reasonable, such forward-looking statements are only predictions and involve known and unknown risks and uncertainties, many of which are beyond the control of Smurfit Westrock, Smurfit Kappa and WestRock. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend upon future circumstances that may or may not occur. Actual results may differ materially from the current expectations of Smurfit Westrock, Smurfit Kappa and WestRock depending upon a number of factors affecting their businesses and risks associated with the successful execution of the Combination and the integration and performance of their businesses following the Combination. Important factors that could cause actual results to differ materially from such plans, estimates or expectations include: developments related to pricing cycles and volumes; economic, competitive and market conditions generally, including macroeconomic uncertainty, customer inventory rebalancing, the impact of inflation and increases in energy, raw materials, shipping, labour and capital equipment costs; reduced supply of raw materials, energy and transportation, including from supply chain disruptions and labour shortages; intense competition; risks related to international sales and operations; failure to respond to changing customer preferences and to protect intellectual property; results and impacts of acquisitions by Smurfit Kappa, WestRock or, following Completion, Smurfit Westrock; the amount and timing of Smurfit Kappa’s, WestRock’s and, following Completion, Smurfit Westrock’s capital expenditures; evolving legal, regulatory and tax regimes; changes in economic, financial, political and regulatory conditions in Ireland, the United Kingdom, the United States and elsewhere, and other factors that contribute to uncertainty and volatility, natural and man-made disasters, civil unrest, pandemics (such as the COVID-19 pandemic), geopolitical uncertainty, and conditions that may result from legislative, regulatory, trade and policy changes associated with the current or subsequent Irish, US or UK administrations; the ability of Smurfit Kappa, WestRock or, following Completion, Smurfit Westrock, to successfully recover from a disaster or other business continuity problem due to a hurricane, flood, earthquake, terrorist attack, war, pandemic, security breach, cyber-attack, power loss, telecommunications failure or other natural or man-made event, including the ability to function remotely during long-term disruptions such as the COVID-19 pandemic; the impact of public health crises, such as pandemics (including the COVID-19 pandemic) and epidemics and any related company or governmental policies and actions to protect the health and safety of individuals or governmental policies or actions to maintain the functioning of national or global economies and markets; the potential impairment of assets and goodwill; the scope, costs, timing and impact of any restructuring of operations and corporate and tax structure; actions by third parties, including government agencies; Smurfit Westrock may be unable to achieve the synergies and value creation contemplated by the Combination; Smurfit Westrock’s availability of sufficient cash to distribute to Smurfit Westrock shareholders in line with current expectations; Smurfit Westrock may be unable to promptly and effectively integrate Smurfit Kappa’s and WestRock’s businesses; failure to successfully implement strategic transformation initiatives; each of Smurfit Kappa’s, WestRock’s and, following Completion, Smurfit Westrock’s management’s time and attention is diverted on issues related to the Combination; disruption from the Combination makes it more difficult to maintain business, contractual and operational relationships; significant levels of indebtedness; credit ratings may decline following the Combination; legal proceedings may be instituted against Smurfit Westrock, Smurfit Kappa or WestRock; Smurfit Kappa, WestRock and, following Completion, Smurfit Westrock, may be unable to retain or hire key personnel; the consummation of the Combination may have a negative effect on Smurfit Kappa’s or WestRock’s share prices, or on their operating results; the risk that disruptions from the Combination will harm Smurfit Kappa’s or WestRock’s business, including current plans and operations; certain restrictions during the pendency of the Combination that may impact Smurfit Kappa’s or WestRock’s ability to pursue certain business opportunities or strategic transactions; Smurfit Westrock’s ability to meet expectations regarding the accounting and tax treatments of the Combination, including the risk that the Internal Revenue Service may assert that Smurfit Westrock should be treated as a US corporation or be subject to certain unfavourable US federal income tax rules under Section 7874 of the Internal Revenue Code of 1986, as amended, as a result of the Combination; and other factors such as future market conditions, currency fluctuations, the behaviour of other market participants, the actions of regulators and other factors such as changes in the political, social and regulatory framework in which the Combined Group will operate or in economic or technological trends or conditions.

 

None of Smurfit Westrock, Smurfit Kappa, WestRock or any of their respective associates or directors, officers or advisers provides any representation, assurance or guarantee that the occurrence of the events expressed or implied in any such forward-looking statements will actually occur. You are cautioned not to place undue reliance on these forward-looking statements. Other than in accordance with its legal or regulatory obligations (including under the UK Prospectus Regulation, the UK Listing Rules, the Disclosure Guidance and Transparency Rules, the Prospectus Regulation Rules, the UK Market Abuse Regulation and other applicable regulations), Smurfit Kappa is under no obligation, and Smurfit Kappa expressly disclaims any intention or obligation, to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.

 

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No Offer of Securities

 

This announcement does not constitute or form part of any offer or invitation to purchase, acquire, subscribe for, sell, dispose of or issue, or any solicitation of any offer to sell, dispose of, purchase, acquire or subscribe for, any security, including any Smurfit Westrock Shares issued to Smurfit Kappa Shareholders and WestRock Shareholders in connection with the Combination. In particular, the issuance of the Smurfit Westrock Shares in connection with the Combination to Smurfit Kappa Shareholders has not been, and is not expected to be, registered under the US Securities Act of 1933, as amended (the “US Securities Act”) or the securities laws of any other jurisdiction. The Smurfit Westrock Shares issued in connection with the Combination to Smurfit Kappa Shareholders have been issued pursuant to an exemption from the registration requirements provided by Section 3(a)(10) of the US Securities Act based on the approval of the Scheme to effect the Smurfit Kappa Share Exchange under the terms of the Transaction Agreement by the Irish High Court. Section 3(a)(10) of the US Securities Act exempts securities issued in exchange for one or more bona fide outstanding securities from the general requirement of registration where the fairness of the terms and conditions of the issuance and exchange of the securities have been approved by any court or authorised governmental entity, after a hearing upon the fairness of the terms and conditions of the exchange at which all persons to whom securities will be issued have the right to appear and to whom adequate notice of the hearing has been given. In determining whether it was appropriate to authorise the Scheme, the Irish High Court considered at the hearing of the motion to sanction the Scheme under Section 453 of the Irish Companies Act whether the terms and conditions of the Scheme were fair to Scheme shareholders. As the Irish High Court approved the Scheme on 2 July 2024, its approval constituted the basis for the Smurfit Westrock Shares being issued without registration under the US Securities Act in reliance on the exemption from the registration requirements of the US Securities Act provided by Section 3(a)(10) of the US Securities Act.

 

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